Citation Nr: 0520983 Decision Date: 08/03/05 Archive Date: 08/17/05 DOCKET NO. 98-14 627 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for low-grade mucoepidermoid carcinoma of the left mandible. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Associate Counsel INTRODUCTION Appellant had active military service from September 1947 to August 1951. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Denver, Colorado, Regional Office (RO) that denied an application to reopen a claim for service connection for low- grade mucoepidermoid carcinoma of the left mandible. The file was subsequently transferred to the Roanoke, Virginia, RO, and then to the Pittsburgh, Pennsylvania RO, which now has custody of the file. Appellant testified in a hearing at the Roanoke RO in November 1998. A transcript of that testimony has been associated with the file. The Board issued a decision in April 2000 that reopened the claim and remanded it back to RO for further development. That development was accomplished, and the file was returned to the Board for appellate review. In January 2003, the Board referred the claim to an Independent Medical Expert (IME) for a specialist's opinion. That opinion has been rendered and has been associated with the file. The claim was remanded to RO once more for further development in June 2004. That development was accomplished, and the file has been returned to the Board for appellate review. FINDINGS OF FACT 1. Appellant has been competently diagnosed with low-grade mucoepidermoid carcinoma of the left mandible, which appellant attributes to exposure to radar transmissions in military service. 2. The preponderance of competent medical opinion states that exposure to radar transmissions in service did not cause appellant's carcinoma. The carcinoma was not shown in service and is not shown until years after service. CONCLUSION OF LAW Low-grade mucoepidermoid carcinoma of the left mandible was not incurred in or aggravated by military service and may not be presumed to have been incurred therein.. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist At the outset, the Board is aware of the recent Court decision in the case Pelegrini v. Principi, 18 Vet. App. 112 (2004), which essentially held that the notice and assistance provisions of the Veterans Claims Assistance Act of 2000 (VCAA) should be provided to a claimant prior to any adjudication of the claim. In this case, the claim had been filed, and initial adjudication had taken place before the VCAA was enacted. Thus, preadjudication notice was not provided nor was it possible. The Pelegrini decision did not contain a remedy under such facts, and there appears to be no efficient remedy evident given these facts. As will be discussed below, the VCAA provisions have been considered and complied with. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the appellant. As such, there is no indication that there is any prejudice to the appellant by the order of the events in this case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events is not shown to have any effect on the case or to cause injury to the claimant. As such, the Board concludes that any such error is harmless and does not prohibit consideration of this matter on the merits. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West 2002)) became law. VA has also redefined the provisions of 38 C.F.R. § 3.159 in view of the new statutory changes. See 66 Fed. Reg. 45,620-32 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2004)). This law redefined the obligations of VA and imposed an enhanced duty on VA to assist a claimant in developing his claim. The VCAA also imposed an enhanced duty on VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is generally considered to be applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA § 7(a), 114 Stat. 2096, 2099-2100 (2000). The initial rating decision in this case was made prior to enactment of the VCAA, but the appeal was pending before the Board on the date of enactment of the VCAA. The VCAA accordingly applies to the instant case. The VCAA requires VA to notify a claimant of the provisions of the VCAA and also to notify the claimant of the evidence necessary to develop his claim. As part of the notice, VA is to specifically inform the claimant, and the claimant's representative if any, of which portion of the evidence, if any, VA will obtain, and which portion, if any, the claimant must obtain. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In the present case, a substantially complete application for service connection was received in September 1996. The original rating decision of November 1996, the Statement of the Case (SOC) in July 1998, and the Supplemental Statements of the Case (SSOC) in April 1999, October 2001, and June 2005 all listed the evidence on file that had been considered in formulation of the decision. RO sent appellant a VCAA duty- to-assist letter in June 2004, after enactment of the VCAA and during the pendancy of this appeal. The Board notes that throughout the history of this claim, both before and after enactment of the VCAA, RO has kept appellant apprised of the evidence needed to perfect a claim for service connection. The Board is aware of no additional outstanding evidence that would be relevant to the issue service connection, and therefore holds that the notification requirements of the VCAA have been satisfied in regard to this claim. The VCAA also places a heightened requirement on VA to assist a claimant in developing his claim. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate his claim, unless no reasonable possibility exists that further evidence would aid in substantiating it. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). The VCAA specifically provides that the assistance provided by VA shall include obtaining records of relevant medical treatment at VA health- care facilities if the claimant furnishes information sufficient to locate those records. 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. § 3.159(c)(2) (2004). VA must also provide a medical examination, or obtain medical opinion, when necessary to adjudicate the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). In this case, RO obtained appellant's service medical records and VA treatment records; appellant has not identified any other medical providers who may have relevant evidence. RO obtained an opinion by an independent medical expert in regard to the etiology of the disability, since the medical evidence of record was inconclusive. Finally, appellant was afforded a hearing before the RO's Hearing Officer in which to present evidence in support of his claim, and on that occasion he presented oral testimony and also introduced extensive documentary evidence for the record. The Board finds that VA's duty to assist has been satisfied in regard to this claim. Since appellant has been advised of the evidence necessary to substantiate the claim, and since all available evidence has been obtained and properly developed, there is no further action to be undertaken to comply with the VCAA or its implementing regulations. The Board will accordingly adjudicate the issue, since doing so poses no risk of prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Factual Background Appellant's service medical records are on file; there is no indication therein of the onset of cancer or exposure to radiation. Appellant's separation physical examination in August 1951 recorded no abnormalities. No cancer was shown in the first year following service separation. Appellant received VA inpatient treatment in March 1992 for carcinoma of the left mandible. He underwent VA surgery for this condition (segmented resection of left mandible, with reconstruction using plate and screws). Discharge diagnosis was low-grade mucoepidermoid carcinoma of the left mandible. Appellant received VA postoperative treatment through May 1993. In March 1993, appellant submitted a claim for service connection for residuals of exposure to nuclear radiation exposure aboard the USS Coral Sea during the period 1950 to 1951. The Denver, Colorado, RO issued a rating decision in July 1993 denying service connection. Appellant submitted a request to reopen the claim in September 1996. The Denver RO issued a rating decision in November 1996 that denied the application, based on a finding that new and material evidence had not been received. The file contains a memo from a VA pathologist in February 1997 asserting that VA should not have applied a 30-year presumption for cancer due to ionizing radiation, since the cancer was not a bone cancer but rather cancer of the salivary gland. RO accordingly reopened the claim by a deferred rating decision in February 1997 and pursued evidence that appellant had participated in military activities that involved exposure to radiation. Appellant submitted a VA Form 21-4138 (Statement in Support of Claim) in March 1997 that asserted he was exposed to radiation while serving on the aircraft carrier USS Coral Sea. Appellant stated that his flight duty station was between the island and the radar dome, resulting in exposure to radar for up to 16 hours per day. The file contains a letter by Dr. M.M.Z., a private physician, dated March 1998. Dr. M.M.Z. asserted that appellant, during his duties on the aircraft carrier flight deck, was exposed to ionizing radiation from nuclear weapons and non-ionizing radiation from high power radars and other electronic devices; appellant experienced no radiant energy exposure before or after his shipboard service. Dr. M.M.Z. expressed the firm opinion that appellant's two cancers (bone and soft tissue) were in fact one single cancer, originating in the epithelial cells in the submandibular gland and caused primarily by radiant energy from the ship's radar. This opinion was based on Dr. M.M.Z.'s reported fifty years of research in the field of the harmful effects of radiant energy. In June 1998, RO issued a rating decision that denied reopening of the claim, based on a finding that new and material evidence had not been received. Appellant testified in a hearing before RO's Hearing Officer in Roanoke, Virginia, in November 1998. Appellant testified that he served aboard the USS Coral Sea for more than a year and a half (Transcript, pg. 3-4). Appellant's duty station was between the ship's superstructure and the ship's radar, which is an area approximately 40 feet wide (Transcript, pg. 4). Appellant was in this area whenever flight operations were underway, which could sometimes involve a period of 19 hours (Transcript, pg. 4). The radar dome stood 10-12 feet above the flight deck (Transcript, pg. 9). Appellant's duty was to extract the crew if an aircraft crashed on the flight deck, so he had to be in the open air (Transcript, pg. 9). Appellant testified that he provided Dr. M.M.Z. with his service medical, dental, and personnel records, and also with his VA records, so Dr. M.M.Z. had all the information necessary for an informed medical opinion (Transcript, pg. 5). Appellant did not live near any high voltage lines, or have any civilian jobs that would have exposed him to microwave radiation (Transcript, pg. 6). Appellant testified that the onset of his symptoms occurred in 1987. A non-malignant growth was detected on the thyroid in December 1991 and was surgically removed, but subsequently a malignancy was found in the salivary gland; the malignant growth was surgically removed in 1992 (Transcript, pg. 10- 11). During the hearing, appellant introduced a number of documents into evidence, including the following. (1) Curriculum vitae of Dr. M.M.Z. (2) Article entitled "Immunologic and Cancer-Related Aspects of Exposure to Low- Level Microwave and Radiofrequency Fields" by Stanislaw Szmigielski, Marian Bielec Slawomir Lipski, and Grazyna Sokolska (64 pages, undated). (3) National Institute for Occupational Safety and Health Feasibility Assessment - Traffic Radar Exposure (38 pages, June 1995). (4) Article entitled "Cancer Morbidity in Subjects Occupationally Exposed to High Frequency (Radiofrequency and Microwave) Electromagnetic Radiation" by Stanislaw Szmigielski (The Science of the Total Environment 180 (1996), pg. 9-17). (5) Article entitled "Electromagnetic Fields and Neoplasms" by Stanislaw Szmigielski and Jerzy Gil (17 pages, undated). (6) Article entitled "Epidemiological Approach to the Study of Microwave Effects" by Charlotte Silverman, MD, PhD (Bulletin of the New York Academy of Medicine, Vol. 55, No. 11, December 1979, pg. 1166-1181). (7) Article entitled "Epidemiologic Evidence of Radiofrequency Radiation (Microwave) Effects on Health in Military, Broadcasting, and Occupational Studies" by John R. Goldsmith, MD, MPH (International Journal of Occupational and Environmental Health, Vol. 1/No. 1, January/March 1995, pg. 47-57). (8) Article entitled "Radiofrequency (RF) Sickness in the Lilienfeld Study: An Effect of Modulated Microwaves" by Ana G. Johnson Liakouris (Archives of Environmental Health, May/June 1998, Vol. 53, No. 3, pg. 236-238). (9) Article entitled "The Cheshire Cat Phenomenon: Effects of Nonionizing Electromagnetic Radiation" by Ginger Pinsholster (Environmental Health Perspectives, Vol. 101, No. 4, September 1993, pg. 292-295). The file contains a notarized "buddy statement" from J.F.D. received November 1999. The statement asserts that J.F.D. served aboard the USS Coral Sea with appellant, and that appellant was a member of the Air Crash Rescue Crew, with duty station aft of the "island" superstructure and forward of the flight deck crane. The aft-scanning radar dome was between these two flight deck structures. The position was manned during flight operations day and night. The file also contains a notarized "buddy statement" from C.S.F. received December 1999. The statement asserts that C.S.F. served aboard the USS Coral Sea with appellant and that appellant was a member of the Flight Deck Crash Crew. The file also contains a notarized "buddy statement" from G.W.H. dated December 1999. The statement asserts that G.W.H. served with appellant aboard the USS Coral Sea and that appellant was a member of the helicopter air-sea rescue unit during flight quarters. The letter also attests to appellant's character. The Board issued a decision in April 2000 denying service connection for low grade mucoepidermoid carcinoma of the left mandible as consequent to ionizing radiation, based on a determination that the claim was not well grounded. The same document held that the claim for service connection as consequent to non-ionizing radiation was well-grounded, and remanded that issue for further development. The file contains medical opinions from the Navy Bureau of Medicine and Surgery dated June 2000 and March 2001. The letters state that radio frequency measurements did not begin to be recorded until the 1960s and are accordingly not on file for the period during which appellant served on the USS Coral Sea. However, current studies show that sailors on aircraft carriers are not exposed to high levels of radio frequency energy from she ship's radars, and those radars are considerably more powerful than the World War II vintage units installed in the USS Coral Sea. The Navy's research shows that during the period of appellant's service the Coral Sea there were three radar units in appellant's proximity. Two of those were anti-aircraft radars and would not have been radiating during flight operations. The third was a rotating air search radar, and rotating radars do not generate a high enough level to be a personnel hazard. Further, cutout and limit switches would have interrupted transmissions whenever the radar beam intercepted a part of the ship's superstructure or was angled downward toward the flight deck; while this was intended to prevent reflection back to radar receivers, it would also have served to minimize exposure to the crew. Therefore, in the opinion of the Navy, it is highly unlikely that appellant was exposed to excessive levels of radio frequency energy while serving at sea. No medical basis exists for attributing current health problems to exposure to radars many years earlier. Since the file contained conflicting medical opinion in regard to the issue of whether appellant's cancer could be consequent to exposure to radar transmissions, VA referred the question to an independent medical expert (IME). The IME responded by sending VA a letter opinion in March 2004. Per the IME's extensive review of the literature, low-dose ionizing radiation has been implicated in the development of both benign and malignant salivary gland tumors. While some laboratory data has suggested that prolonged exposure to non- ionizing radiation can lead to the development of certain malignancies, the IME is unaware of any connection between low-grade mucoepidermoid carcinomas and radiant energy exposure. Review of the literature identifies an increased risk associated with radiofrequencies and microwaves, but, even in those scattered reports, there is no documentation of an increased risk in developing salivary malignancies. In the IME's opinion, the exposure appellant received as a result of his military service did not have an impact on the subsequent development of his cancer. In August 2004, appellant submitted a document to VA published by the National Institute of Environmental Health Sciences (NIEHS) of the National Institutes of Health. The document is entitled NIEHS Report on Health Effects from Exposure to Power-Line Frequency Electric and Magnetic Fields (NIH Publication No. 99-4493). The study addresses health risks associated with exposure to extremely low frequency electric and magnetic fields (ELF-EMF). The study does not address radar transmissions and does not cite cancer of the salivary gland. The study concludes that scientific evidence suggesting ELF-EMF exposures pose any health risk is weak. III. Analysis Service connection basically connotes that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2004). Aside from the radiation discussion below, service connection for carcinoma may be presumed where shown within 1 year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection there must be: medical evidence of a current disability, medical evidence, or in some cases lay evidence, of in-service incurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). There is medical evidence, in the form VA medical records, that appellant has had surgery for a low grade mucoepidermoid carcinoma, so the first part of the Hickson analysis is satisfied. The second part of the Hickson analysis is medical or lay evidence of in-service occurrence or aggravation of a disease or injury. In this case, there is no such evidence, and the second part of the Hickson analysis is not satisfied. Lay evidence does show that appellant's duty station aboard the USS Coral Sea was in proximity to several radars. The third part of the Hickson analysis is medical evidence of a nexus between military service and the claimed disability. In this case, there is conflicting medical opinion in regard to the question of whether exposure to radars in service caused appellant's current cancer. Dr. M.M.Z. authored an opinion that appellant's cancer "was primarily caused by the radiant energy of the ship's radar." On the other hand, a U.S. Navy physician stated in June 2000 that the Navy does not maintain records of exposure to radiation from radar and communications antennas "since there is no harm attributable to cumulative exposures." Another U.S. Navy physician stated in March 2002 that "it is highly unlikely that [appellant] would have been exposed to excessive levels of radio frequency energy." Finally, the IME stated in March 2004 that "the exposure this patient received as a result of his military service did not have an impact on the subsequent development of his cancer." It is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether or not (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, there is no evidence that any of the four physicians actually examined appellant. Dr. M.M.Z. and the IME each had the opportunity to review appellant's medical file, while the two Navy physicians did not. The record shows that Dr. M.M.Z. was an engineering officer in the U.S. Navy for a time, and thus had a presumptive knowledge of Navy systems, as did the two Navy physicians, while the IME had no such presumptive knowledge. Dr. M.M.Z. is an ophthalmologist by specialty, whereas the IME is a clinical director of oncology. However, Dr. M.M.Z. has a professional reputation in the research of radiation-related pathologies, while there is no similar indication for the IME. The file contains one competent medical opinion for nexus and three competent medical opinions against nexus. In addition to this quantitative imbalance, the Board notes that the Navy physicians researched the exact types of radars that were in service aboard the USS Coral Sea, but there is no indication that such information was available to Dr. M.M.Z. at the time that he published his opinion. Finally, the Board notes that the IME, as a specialist in oncology in a major medical center, has more credibility than Dr. M.M.Z. in pronouncing an opinion in regard to the etiology of a specific cancer. Even though Dr. M.M.Z. specialized in researching the medical effects of radiation, that research appears to have concentrated overwhelmingly on the effect of microwave and laser radiation on the eye, which is not especially probative regarding the effects of radar transmissions on the salivary gland. The Board accordingly finds that the greater weight of competent medical evidence is against nexus, and the third Hickson element is not satisfied. Since the three Hickson requirements are not satisfied, service connection must be denied. Cancer of the salivary gland may be presumptively related to exposure to ionizing radiation under 38 C.F.R. §§ 3.309(d)(2)(xiv) and 3.311(b)(2)(xiv). However, there is not indication in the file, and appellant has not alleged, that he was exposed to ionizing radiation while in service; his claimed exposure to radar emissions constitutes non- ionizing radiation and the provisions of 38 C.F.R. §§ 3.309 and 3.311 do not apply. Moreover, the cancer was not shown within 1 year of separation, so no basis for presumptive service connection is shown. The Board notes at this point that appellant has submitted a number of articles discussing the potential health risks of exposure to various types of radiation. However, review of these articles does not disclose that any of them showed a causal connection between radar transmissions and salivary cancer. For that reason, they are irrelevant toward resolution of the issue at hand. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2004). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the preponderance of the evidence is against the claim and the benefit-of-the-doubt rule does not apply. ORDER Service connection for low-grade mucoepidermoid carcinoma of the left mandible is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs