Citation Nr: 0121682 Decision Date: 08/28/01 Archive Date: 09/04/01 DOCKET NO. 94-39 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for postoperative residuals of thyroid cancer, to include as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) by means of rating decisions rendered by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA) issued in December 1993 and January 1994. In July 1995, the veteran appeared at a personal hearing before a RO hearing office. Additionally, he was afforded a May 2001 hearing before the undersigned Member of the Board sitting in Washington, D.C. FINDINGS OF FACT 1. The RO has notified the veteran of the evidence needed to substantiate his claim, obtained all evidence that is relevant to the claim, and obtained a VA medical opinion in order to assist him in substantiating his claim for VA compensation benefits. 2. The evidence shows that, while performing his duties as a Teletype Maintenance Shift Worker at Wheelus Air Force Base (AFB) in Libya, the veteran regularly worked in a building with posted radiation signs. 3. The veteran was diagnosed with thyroid cancer in 1993. 4. The evidence does not show that the veteran was exposed to ionizing radiation during active service. 5. The evidence does not show that the veteran's thyroid cancer, which was first manifested many years after service, is related to an in-service disease or injury, including exposure to ionizing radiation. CONCLUSION OF LAW Thyroid cancer was not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 5100-5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.307, 3.309, 3.311 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board must consider the impact of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100-5107 (West. Supp. 2001) on the veteran's claims. McQueen v. Principi, No. 96-403 (U.S. Vet. App. Mar. 13, 2001) (per curiam). The law provides that VA has a duty to assist veterans and other claimants in developing their claims for VA benefits. The Board notes that the veteran's application for the benefits at issue is complete. The duty to assist also requires VA to make "reasonable efforts to obtain relevant records (including private records)." 38 U.S.C. § 5103A. As the veteran has not referenced, nor does the evidence show, the existence of any additional pertinent medical evidence that is not presently associated with the claims folder, VA's duty to assist the claimant in this regard is satisfied. Id. The VCAA also provides that upon receipt of an application for VA benefits, VA shall notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, not previously provided that is necessary to substantiate the claim. Id. The veteran was informed of the information necessary to substantiate his claims by means of various Rating Actions, and Statements of the Case issued during the appeal. Accordingly, the Board finds that the duty to inform the veteran of required evidence to substantiate his claim has been satisfied. Id. At § 5103(a). Additionally, as set forth in the VCAA, the duty to assist requires that VA furnish a medical examination or opinion when such is necessary to make a decision on the claim. In the present case, the veteran has submitted private medical evidence indicating that he presently has residuals of thyroid cancer alleged due to a reported history of inservice exposure to radiation. In addition, VA has obtained a medical opinion addressing the issue presented. Accordingly, the Board finds that the duty to provide a medical opinion has been satisfied. The RO has completed all development of this claim that is possible without further input by the veteran. The veteran has been duly notified of what is needed to establish entitlement to the benefits sought, what the VA has done and/or was unable to accomplish, and what evidence/information he can obtain/submit himself. Accordingly, the Board finds that the requirements set forth in the VCAA with regard to notice and development of the appellant's claim, have been satisfied, and that returning the case to the RO to consider the requirements of VCAA would serve no useful purpose, but would needlessly delay appellate review. I. Evidentiary Background Service personnel records show that the veteran was stationed at Wheelus Air Force Base (AFB) from October 1966 to April 1968. During this time, his duty title was Teletype Maintenance Shift Worker. The evidence shows that the veteran underwent definitive external radiation treatment for squamous cell carcinoma of his left tonsil in January and February 1992. Private medical evidence shows that the veteran developed metastatic papillary adenocarcinoma of his thyroid and neck requiring a thyroidectomy and neck dissection in 1993. Subsequently, he underwent radiation treatment to ablate any remaining thyroid tissue. In August 1993, the veteran submitted a VA Form 21-4138, Statement in Support of Claim, wherein he indicated that he was stationed at Wheelus AFB, Tripoli, Libya, from the fall of 1966 to the spring of 1968. According to the veteran, he possessed "Top Secret Crypto Clearance." He stated that his duties required him to traverse the base as needed with no areas being off limits. He also stated that he was "aware that radiation materials were present." A January 1994 private medical report from Dr. Richard H. Galloway, a Certified Rehabilitation Counselor, indicates that the veteran was having problems both psychologically and physically subsequent to his treatment for tonsil and thyroid cancer. In February 1994, the Department of the Air Force furnished a report indicating a review of the U.S. Air Force (USAF) Master Radiation Exposure Registry for dosimetry data revealed no external or internal radiation (bioassay) exposure data for the veteran. In June 1994, the veteran submitted a statement wherein he alleged that he performed maintenance on communication equipment in a building where nuclear devices were stored. According to the veteran, while personnel assigned to this area were issued badges to ascertain exposure to radiation, he was not assigned a badge as he was not officially assigned to this area. In a July 1995 letter, Dr. J. H. Bosley, a private physician, indicated that he was "very suspicious that [the veteran's] exposure to various chemical and radiation while stationed in a high-security area such as Wheelus AFB may well be the origin of his health troubles." The veteran was afforded a hearing before a RO hearing officer in July 1995. He testified that once a week he performed maintenance in the "depot which [had] nuclear materials." While those assigned to this area wore protective gear and badges to assess radiation exposure, the veteran indicated that was never issued one as he was not permanently assigned to the area. The veteran stated that signs were posted warning of radiation. He expressed a belief that thermonuclear bombs were being stored at the depot. Due to the classified nature of this area, security was tight and the veteran had to be escorted and accompanied while maintaining the equipment. In January 1996 an opinion was obtained from Dr. Norman S. Gilbert, a VA internist. Dr. Gilbert found that a review of the veteran's service medical records did not substantiate radiation exposure in 1966-67. Further, Dr. Gilbert found that there was no etiological relationship between the carcinoma of the thyroid diagnosed in 1993 and an alleged radiation exposure in 1966-67. An April 1997 statement from Dr. Marianne Barnhill, a private hematologist/oncologist, indicates that the veteran was preparing to undergo a repeat I-131 whole body scan for tumor surveillance. A January 1998 memorandum from the USAF indicates that a review of the USAF Master Radiation Exposure Registry revealed no external or internal radiation (bioassay) exposure data for the veteran. It was noted that this registry contains information from 1948 to the present. In an August 1998 statement, a fellow serviceman recalled that the veteran had worked in a cinder block building with black and orange radiation emblems. As the veteran was the "one of the best at trouble shooting," he seemed to always get the assignment to go into this building and make repairs or perform preventive maintenance. Additionally, this serviceman remembered the veteran expressing concern to a supervisor about going into the building without protective gear and being told that he would not be in the building long enough for anything to hurt him. Included with this statement were pictures allegedly taken in Libya. In a September 1998 statement, Dr. Bosley opined that the veteran's "cancers of the tonsil and thyroid gland probably did arise as a sequela of radiation exposure, while on duty in the Air Force, stationed at Wheelus AFB in Libya." It was noted that thyroid cancers have no association with personal habits such as alcohol or tobacco use. Dr. Bosley indicated the veteran described a history of repeatedly entering an area within the "maintenance depot" without protective gear and without being issued a dosimetry monitoring badge. The veteran also reported warning signs in the area and was allegedly assured by his commanding officer that he would not received enough radiation to cause harm to himself. Dr. Bosley noted that the veteran was "uncertain how this radiation was being generated." However, based on his own research, Dr. Bosley noted that Wheelus was "highly unlikely to have nuclear weapons." According to Dr. Bosley, "it is likely, however, that the technical people were using heavy-duty X[-]ray equipment to check critical parts of high- performance aircraft from stress and micro-fractures." In a March 2000 statement, Dr. Bosley, reiterated that the veteran's "history is of repeated exposure to radiation in a maintenance depot facility." The veteran had undergone a resection of squamous cell carcinoma of the right lateral tongue. Dr. Bosley "strongly suspect[ed] that [the veteran's] story of radiation exposure while at Wheelus AFB is entirely true." The veteran also submitted a September 1998 statement from Dr. Stutes, a private dentist. Dr. Stutes stated that the veteran had been treated for dental related problems associated with his neck cancer. Dr. Stutes opined that "given [the veteran's] history, the most likely exposure probably occurred while he was working at Wheelus A.F.B. in Tripoli, Libia [sic]." In May 2001, the veteran testified at a hearing before the undersigned Member of the Board sitting in Washington, D.C. The veteran testified that Wheelus A.F.B. included a training facility for fighter pilots. While stationed there, he worked servicing teletype machines. When asked about the depot maintenance building, the veteran indicated that he did not know what it was used for. He described the building as a white sand block building with a radiation warning sign on the left corner by the front door. The building had maybe one or two windows. He reported that he had to have top secret clearance to enter the building. He noted that a wire with wool blankets draped over it hung across the room in which the crypto machine that he was assigned to maintain. He did not know what was on the other side of the blanket and was always supervised when in this room. He also stated that there was an area of the building that he had never visited. He reported that those who worked in this building wore lead aprons and radiation badges. Following service, the veteran worked as a farmer, mud engineer, and burglar bar salesman. At one time, prior to his diagnosis of thyroid cancer, he owned a construction business. The veteran reported that, prior to service, he had never had a dental x-ray. In May 2001, the veteran submitted a statement from Dr. Bash, a private neuro-radiologist. Dr. Bash noted that he had reviewed a copy of the veteran's claims folder for the purpose of rendering a medical opinion between the veteran's alleged inservice exposure to ionizing radiation and his thyroid cancer. Based on his review of the evidence, Dr. Bash opined that the veteran, "while on active military duty, worked in a building that posed a high risk of radiation exposure." Dr. Bash noted disagreement with Dr. Gilbert's opinion as there is "a clear and direct literature-documented relationship between radiation exposure and thyroid cancer." Dr. Bash based his opinion that the veteran's thyroid cancer was likely caused by inservice exposure to radiation based on the following reasons: 1. The veteran's relatively young age at time of exposure (20-23 years old); 2. The fact that papillary thyroid carcinoma is slow growing and may appear many years or decades after exposure; 3. The fact that the veteran worked in a building at Wheelus AFB with known radiation exposure from October 1966 to January 1968 and then was diagnosed with papillary thyroid cancer in May 1993, a latent interval of some 25 to 27 years; 4. The fact that the type of low-dosage radiation the patient was exposed to while at Wheelus is consistent with the amounts known to cause papillary carcinoma; and 5. Medical literature supports an association between radiation exposure and thyroid cancer. Dr. Bash noted that while the veteran's post-service medical history was significant for radiation treatment for tonsil cancer approximately 16 months prior to being diagnosed with thyroid cancer, it is medically unlikely for this radiation treatment to have caused thyroid cancer. II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. If a veteran served 90 days or more during a period of war and cancer becomes manifest to a degree of 10 percent or more within one year from separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for a disease that is claimed to be due to radiation exposure during service can be established by three different methods. First, by submitting evidence that the disease is one of the 15 types of cancer that are presumptively service connected in accordance with 38 U.S.C.A. § 1112(c); second, by submitting evidence that the disease is one of the radiogenic diseases listed in 38 C.F.R. § 3.311(b) that are service connected if sufficient radiation exposure is shown; and third, by direct service connection. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd 120 F.3d 1239 (Fed. Cir. 1997). Certain diseases, including cancer of the thyroid, shall be service connected if they become manifest at any time in a radiation-exposed veteran, unless the evidence indicates that the disease is due to an intercurrent injury or disease. The term radiation-exposed veteran is defined as a veteran who while on active duty participated in a radiation-risk activity. Radiation risk activity means onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Nagasaki or Hiroshima, Japan, by U.S. forces from August 1945 to July 1946; and internment as a prisoner of war in Japan during World War II which resulted in the opportunity for exposure comparable to that of U.S. forces at Nagasaki or Hiroshima. 38 U.S.C.A. § 1112(c); 38 C.F.R. §§ 3.307, 3.309(d). The term "occupation of Hiroshima or Nagasaki, Japan, by United States forces" means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure, or deactivation and conversion of war plants or materials. 38 C.F.R. § 3.309(d)(3). If a veteran who does not meet the definition of a radiation- exposed veteran develops a radiogenic disease, including thyroid cancer, following his separation from service, and the veteran contends that the disease resulted from exposure to ionizing radiation during service, an assessment will be made as to the size and nature of the radiation dose. If military records do not establish presence at or absence from a site at which exposure to radiation is claimed to have occurred, the veteran's presence at the site will be conceded. If it is determined that the veteran was exposed to ionizing radiation as a result of the occupation of Hiroshima or Nagasaki and he subsequently develops a radiogenic disease within the applicable presumptive period, the case will be submitted to the Under Secretary for Benefits for a determination on whether the radiogenic disease resulted from exposure to ionizing radiation in service. 38 C.F.R. § 3.311. The Under Secretary for Benefits is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health. If, after consideration, the Under Secretary for Benefits determines that there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, the Under Secretary shall so inform the RO in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1). Determinations regarding service connection are to be based on review of the entire evidence of record. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); 38 C.F.R. § 3.303(a). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The medical evidence shows that the diagnosis of carcinoma of the thyroid was rendered in May 1993. The Board finds, therefore, that the medical evidence establishes a current diagnosis of disability. As an initial matter the Board finds that the medical evidence does not show that carcinoma of the thyroid had its onset during service or the one-year presumptive period following separation from service, and the veteran does not claim otherwise. He contends that the thyroid cancer was caused by exposure to radiation during active service. The evidence does not show that the veteran was a radiation- exposed veteran as defined under pertinent VA regulations as the evidence does not show that he, while on active duty, participated in a radiation-risk activity. See 38 C.F.R. §§ 3.309, 3.311. The evidence does not show, nor does the veteran claim, that he had onsite participation in a test involving the atmospheric detonation of a nuclear device; participated in the occupation of Nagasaki or Hiroshima, Japan, by U.S. forces from August 1945 to July 1946; or was a prisoner of war in Japan during World War II which resulted in the opportunity for exposure comparable to that of U.S. forces at Nagasaki or Hiroshima. See 38 U.S.C.A. § 1112(c); 38 C.F.R. §§ 3.307, 3.309(d). Accordingly, he does not meet the definition of a "radiation-exposed veteran" in accordance with 38 C.F.R. § 3.309(d). See McGuire v. West, 11 Vet. App. 274 (1998). The Board finds, therefore, that he is not entitled to the presumption of service connection for cancer of the thyroid based on radiation exposure. 38 C.F.R. § 3.309(d). Although the veteran does not meet the definition of a "radiation-exposed veteran," the analysis does not end there. Because he has a radiogenic disease as shown in 38 C.F.R. § 3.311, service connection may be found if VA finds that it is at least as likely as not that any radiation to which he may have been exposed in service caused him to develop thyroid cancer in 1993. The veteran alleges that, while serving at Wheelus AFB, he regularly worked in building with signs indicating the presence of radiation. In support of this claim, he submitted a statement from a fellow serviceman indicating that the veteran worked in an area with posted radiation warning signs. The Board finds that this information is credible to the extent that it shows that the veteran entered into a building with posted radiation warning signs. While the veteran worked in a building that was noted to have radiation warning signs, the evidence does not show that he was exposed to ionizing radiation during service. When asked at his July 1995 RO hearing how he knew that he was exposed to radiation, he indicated that he based his allegation on the fact that the area was classified and those people assigned to the area wore badges to assess radiation exposure. When he inquired about what these personnel did at this building, he was told that the place was classified and they could not tell him. Similarly, at his May 2001 Board hearing, the veteran testified that he did not know what this building was used for. While the veteran may honestly believe that he was exposed to ionizing radiation during active service, service medical and personnel records do not show that he was exposed to such radiation. On the contrary, the RO obtained information from the Air Force indicating that a review of the Master Radiation Exposure Registry revealed no external or internal radiation exposure data on the veteran. As the veteran is unable to identify any specific exposure to ionizing radiation and the available service records do not indicate any exposure to external or internal radiation, the Board finds, as a matter of fact, that the evidence does not show that the veteran was exposed to ionizing radiation during active service. Therefore, as the evidence does not show sufficient exposure to ionizing radiation, service connection under 38 C.F.R. § 3.311 is not warranted. As stated previously, service connection may also be established on a direct basis under 38 C.F.R. § 3.309. The Board notes that, in January 1996, a VA physician reviewed the veteran's medical records and found, because there was no substantiation of radiation exposure during active service, there was no etiological relationship between the veteran's thyroid cancer and alleged inservice radiation exposure. In support of his claim, the veteran has submitted several opinions from private medical providers linking his present residuals of thyroid cancer to inservice radiation exposure while serving in Libya. However, these doctors relied extensively on the veteran's reported history of inservice radiation exposure. In particular, the Board notes the May 2001 opinion, in which Dr. Bash bases his opinion on the assumption that the veteran worked in a building with "known radiation exposure." However, as indicated above, information concerning inservice radiation exposure received from the Air Force as well as the veteran's service records do not indicate any external or internal radiation exposure. The Board notes that it is not required to accept doctors' opinions that are based upon the veteran's recitation of medical history. Godfrey v. Brown, 8 Vet. App. 113 (1995), see also, Owens v. Brown, 7 Vet. App. 429 (1995). The opinions by Drs. Bosley, Stutes, and Bash rely solely on the veteran's recited history of radiation exposure and do not show consideration of the evidence showing a lack of radiation exposure in the Air Force Master Radiation Exposure Registry. Therefore, the Board finds that the January 1996 VA opinion is more probative to the issue presented as it is consistent with the evidence of lack of inservice exposure to ionizing radiation. In assessing the probative value of Dr. Gilbert's statement, the Board notes that Dr. Bash noted disagreement with Dr. Gilbert's opinion as there is "a clear and direct literature-documented relationship between radiation exposure and thyroid cancer." However, the Board notes that Dr. Gilbert does not state that there is no relationship between radiation and thyroid cancer. Rather, Dr. Gilbert, based on a lack of substantiated radiation exposure, opined that there was no etiological relationship between the veteran's thyroid cancer and his alleged radiation exposure. Accordingly, service connection on a direct basis is not warranted. 38 C.F.R. § 3.309. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, considering all of the evidence in this case, including the various medical statements and reports and the veteran's hearing testimony, the Board finds that the preponderance of the evidence is against his claim and that, therefore, the provisions of § 5107(b) are not applicable. Therefore, the Board concludes that the evidence does not establish that the veteran's thyroid cancer resulted directly from exposure to ionizing radiation during service, nor may such a relationship be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.311. ORDER Service connection for postoperative residuals of thyroid cancer, to include as secondary to exposure to ionizing radiation, is denied. MARK W. GREENSTREET Member, Board of Veterans' Appeals