Citation Nr: 0813263 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 0303058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for thyroid disease, to include as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from October 1945 to May 1949, and from January 1951 to April 1952. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a kidney/bladder disorder, asbestosis, and for thyroid disease as a result of exposure to ionizing radiation. The veteran initiated appeals as to the three issues noted above. Those matters came before the Board in December 2004. At that time, the kidney/bladder claim was dismissed, as the veteran had requested that such appeal be withdrawn from consideration. Additionally, the December 2004 Board decision denied the claim of entitlement to service connection for asbestosis and remanded the thyroid claim in order to accomplish additional development. The Board notes that a claim of entitlement to service connection for headaches was denied in rating decisions dated in July 2002 and February 2003. The veteran did not initiate an appeal as to this issue. In a February 2003 rating decision, service connection for chronic obstructive pulmonary disease (COPD) was denied. The veteran did not initiate an appeal as to this issue. In November 2004, the veteran testified at a Travel Board hearing before the undersigned. FINDINGS OF FACT 1. The veteran participated in Operation SANDSTONE in May 1948. 2. The competent evidence shows a current thyroid disorder, first treated several decades following separation from active service, but does not demonstrate thryroid cancer. 3. The competent evidence does not causally relate the thyroid disorder to in-service radiation exposure or to any other incident of active service. 4. There is no medical complexity or controversy in this case requiring an opinion from an independent medical expert (IME) for resolution of the matter on appeal. CONCLUSION OF LAW 1. A thyroid disorder was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311 (2007). 2. An IME opinion is not warranted in this case. 38 U.S.C.A. § 7109(a) (West 2002); 38 C.F.R. §§ 3.328(a), 20.901(d) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of May 2002 and February 2005 letters that fully addressed all four notice elements. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. Additionally, although the letter was returned as undeliverable, evidence of record shows that the first letter was not sent to the veteran's last-known address. A second communication was sent to the revised address and was not returned. With respect to the Dingess requirements, in December 2007, the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Based on the foregoing, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The case was readjudicated by way or a statement of the case in November 2002 and supplemental statements of the case dated in February 2003, February 2004, and December 2007. Thus, the timeliness of the notice is not prejudicial to the veteran. Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the veteran's service medical records, as well as post-service reports of VA and private treatment and examination. Moreover, correspondence from the Defense Threat Reduction Agency is associated with the claims file. Moreover, the veteran's statements in support of his claim are of record, including testimony provided at a November 2004 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. In March 2008, the veteran's representative requested an advisory opinion from an IME. When, in the judgment of the VA or the Board, expert medical opinion, in addition to that available within the VA, is warranted by the medical complexity or controversy involved in an appealed case, the VA or the Board may secure an advisory medical opinion from one or more IMEs who are not VA employees. 38 U.S.C.A. § 7109(a); 38 C.F.R. §§ 3.328(a), 20.901(d). The Board, however, finds that an IME opinion is not necessary in this case. The current medical evidence contains sufficient clinical findings and medical assessment concerning the etiology of the veteran's thyroid disorder to permit the Board to adequately adjudicate this claim. The current record presents no conflict between existing medical findings, assessments, or opinions. As there is no medical complexity or controversy in this case requiring an opinion from an IME for resolution of the matter on appeal, the Board finds that such opinion is not warranted. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Discussion The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. The veteran is claiming entitlement to service connection for thyroid disease. Specifically, he contends that while serving aboard the USS Atlanta, he was in Nagasaki. Also, he asserts that while aboard the USS Atlanta, he participated in Operation SANDSTONE. At the outset, the Board has considered whether presumptive service connection is warranted in the instant case. Specifically, the provisions for consideration are under 38 C.F.R. § 3.309(d), concerning radiation-exposed veterans. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i),(ii) (2007). The term "onsite participation" is defined to mean (a) During the official operation period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test; (b) During the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test; (c) Service as a member of the garrison or maintenance forces on Eniwetok during the periods June 21, 1951, through July 1, 1952, August 7, 1956, through August 7, 1957, or November 1, 1958, through April 30, 1959; (d) Assignment to official military duties at naval shipyards involving the decontamination of ships that participated in Operation CROSSROADS. 38 C.F.R. § 3.309(d)(3)(iv). For tests conducted by the United States, the term "operational period" means, for Operation SANDSTONE, the period April 15, 1948 through May 20, 1948. 38 C.F.R. § 3.309(d)(3)(v)(C). In the present case, the veteran reported that he participated in Operation Sandstone while serving aboard the USS Atlanta as a Seaman Apprentice in May 1948. A June 2006 letter from the Defense Threat Reduction Agency confirmed the veteran's participation in Operation SANDSTONE. Based on the foregoing, it is determined that the veteran participated in a radiation-risk activity. However, this finding only enables an allowance of presumptive service connection for the diseases listed at 38 C.F.R. § 3.309(d)(2). Such diseases include leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo- alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). Although the veteran does have thyroid disease, such disease is benign, rather than cancerous. Because thyroid cancer has not been demonstrated, a grant of presumptive service connection based on radiation exposure is not permissible here. Having ruled out presumptive service connection in the present case, the Board will now address the issue of direct service connection on a nonpresumptive basis. In doing so, the Board notes that because the veteran's claim is based on exposure to ionizing radiation, the provisions of 38 C.F.R. § 3.311 are potentially applicable. Specifically, where a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(b)(5) requires that colon cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). The veteran's claimed nonmalignant thyroid is not among the diseases characterized as "radiogenic" under 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Again, only thyroid cancer is contemplated. Therefore, the special development procedures outlined under 38 C.F.R. § 3.311 do not apply in the present case. Thus, only direct service connection under 38 C.F.R. § 3.303 remains for consideration. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The service medical records do not reveal any complaints or treatment referable to a thyroid disorder. Physical examinations, including the veteran's final separation examination in April 1952, revealed normal findings. Following separation from active service, the record does not indicate any treatment for a thyroid disorder until 1998, at which time the veteran underwent a thyroidectomy. Based on the foregoing, thyroid treatment was not demonstrated until approximately 45 years following the veteran's separation from active service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, the veteran has not contended that he experienced symptoms of a thyroid disorder continuously since his active service. Rather, he contends that the thyroid disorder that arose several decades after military discharge was caused by radiation exposure. The Board has already considered the provisions of 38 C.F.R. §§ 3.309 and 3.311 relating to radiation exposure, and determined that they cannot serve as a basis for a grant of service connection here. However, a grant of service connection would still be possible if the competent evidence of record attributed the currently diagnosed thyroid disorder to in-service radiation exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The competent evidence of record does not here establish a causal relationship between the veteran's thyroid disorder and active service. Rather, the claims folder contains various opinions to the contrary. For example, a VA examiner in October 2006 concluded that the veteran's benign thyroid disease was not caused by or the result of in-service exposure to ionizing radiation and was not otherwise related to service. The examiner stated that he considered medical literature as well as the veteran's medical records in arriving at that conclusion. An October 2007 opinion written by the Chief Public Health and Environmental Hazards Officer also concluded that it was unlikely that the veteran's non-malignant thyroid nodular disease could be attributed to exposure to ionizing radiation in service. In reaching that conclusion, the veteran's individualized radiation dose estimates were considered. It was noted that, per a study of Japanese atomic bomb survivors, there was an estimated 2 percent likelihood that the dose of radiation to which the veteran was exposed could have caused his thyroid disease. It was also noted that the Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health did not address benign thyroid nodules, adenomas, or goiters. Citing the above opinion, in October 2007, the Director, Compensation and Pension Service, concluded that there was no reasonable possibility that the veteran's nonmalignant thyroid nodular disease could be attributed to his exposure to ionizing radiation during participation in Operation Sandstone. The above opinions were offered following consideration of the veteran's in-service radiation dose estimates, medical literature, and the veteran's own medical history. For these reasons, they are found to be highly probative. Moreover, no other competent evidence of record refutes such opinions. In this regard, the veteran did state at his November 2004 hearing that a doctor told him his thyroid goiter was the result of ionizing radiation. However, a lay person's account of what a physician purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The veteran himself believes that his thyroid disorder is causally related to radiation exposure incurred during active service. However, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In conclusion, there is no support for a grant of service connection for a thyroid disorder, on either a direct or presumptive basis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a thyroid disorder is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs