Citation Nr: 0814488 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 03-31 881 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for Hurthle cell tumor of the thyroid as a result of exposure to ionizing radiation, and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran had active service from January 1950 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In March 2008, the veteran was afforded a videoconference hearing before John J. Crowley, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002 & Supp. 2005). FINDINGS OF FACT 1. In an unappealed decision, dated in January 1998, the RO denied a claim for service connection for a Hurthle cell tumor of the thyroid as a result of exposure to ionizing radiation. 2. The evidence received since the RO's January 1998 decision, which denied service connection for Hurthle cell tumor of the thyroid as a result of exposure to ionizing radiation, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. The veteran's Hurthle cell tumor of the thyroid is due to his service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO's January 1998 decision, which denied service connection for Hurthle cell tumor of the thyroid as a result of exposure to ionizing radiation; the claim for service connection for a Hurthle cell tumor of the thyroid is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2005); 38 C.F.R. § 3.156 (2007). 2. The criteria for service connection for Hurthle cell tumor of the thyroid have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that new and material evidence has been presented to reopen his claim for service connection for a Hurthle cell tumor of the thyroid. In a rating decision, dated in January 1998, the RO denied a claim for service connection for a Hurthle cell tumor of the thyroid. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2005). In August 2002, the veteran filed to reopen the claim. In December 2002, the RO denied the request to reopen the claim. The veteran has appealed. The veteran's claim to reopen was received at the RO after August 29, 2001. For claims filed on and after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Importantly for this case, for the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). Service connection for disability which is claimed to be attributable to ionizing radiation exposure during service can be accomplished in three different ways. First, there are [specific] types of cancer which will be presumptively service connected if manifested in a radiation exposed veteran. 38 U.S.C.A. § 1112(c). Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Rucker v. Brown, 10 Vet. App. 67, 71 (1997) (citing Ramey v. Brown, 9 Vet. App. 40, 44 (1996); Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir. 1994)). 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 or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(3)(ii) (2007). The most recent and final denial of this claim was in January 1998. Therefore, the Board must determine if new and material evidence has been submitted since that time. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). At the time of the RO's January 1998 decision, the veteran was shown to have had active duty between January 1950 and January 1954. A statement from the Nuclear Test Personnel Review, dated in January 1980, indicated that in April 1953, the veteran had been a participant in observation of a nuclear test in Nevada, and that he had been 1,000 yards from GZ (ground zero). This statement contained few other relevant details, and did not indicate the name of the operation in which the veteran had participated; he was nevertheless shown to have qualifying service in a radiation-risk activity as discussed at 38 C.F.R. § 3.309(d)(3)(ii). Private medical records showed that in 1995, the veteran underwent an excision of a thyroid mass (thyroidectomy). An accompanying private pathology report indicated that he had a Hurthle cell tumor of the thyroid gland, and that it was benign. The veteran's service medical records did not show any relevant treatment or findings, providing limited evidence against this claim. At the time of the RO's January 1998 decision, there was no competent evidence to show that the veteran's Hurthle cell tumor of the thyroid was related to exposure to ionizing radiation during service. Medical evidence received since the RO's January 1998 decision consists of VA and non-VA reports, dated between 1995 and 2007. This evidence includes statements from three private physicians, J.N.K., M.D., dated in August 2002, M.S.A., M.D., dated in October 2004, and J.C., M.D., dated in October 2004, in which these physicians essentially indicate that the veteran's Hurthle cell tumor of the thyroid may have been related to exposure to ionizing radiation during service. The statement of Dr. M.S.A. further notes that radiation exposure is a known risk factor for both benign and malignant thyroid tumors. The statement of Dr. J.C. states that it "is highly likely" that the veteran's Hurthle cell tumor of the thyroid is related to his exposure to ionizing radiation during service. Two medical articles have also been submitted. An article by S.A., M.D., states that thyroid cancers only account for 0.74 percent of all cancers in men in the United States, and that Hurthle cell carcinoma of the thyroid gland is an unusual and relatively rare type of differentiated thyroid cancer. The article notes that causes include a history of radiation to the neck. An article from the Journal of Endocrinology and Metabolism notes an increased in thyroid cancer in children following the Chernobyl nuclear reactor accident. Other evidence received includes a radiation dose estimate for the veteran, from the Defense Threat Reduction Agency (DTRA), dated in February 2007. In addition, service records have been submitted, to include dosimetry readings for members of the veteran's platoon, but which contain no values for the veteran's film badge. However, an accompanying statement, dated in May 1953, reports that "it is a logical assumption" that the indicated dosages are applicable to all members of the platoon. Other service evidence, and newspaper articles, show the following: the veteran participated in observation of SHOT BADGER, a 23-kiloton yield blast, in April 1953; 11 minutes after the shot, the veteran's unit was helicoptered to within 1,830 meters of ground zero; a shift in the wind contaminated some observation trenches; some Marines exceeded the allowable radiation doses. This evidence, which was not of record at the time of the January 1998 decision, is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156. The Board also finds that this evidence is material. Not only does this evidence include a radiation dose estimate, but the three private physicians' opinions are competent evidence to show that the veteran's Hurthle cell tumor of the thyroid may be related to his inservice radiation exposure. The Board therefore finds that the submitted evidence raises a reasonable possibility of substantiating the claim, and the claim is therefore reopened. The Board will now analyze the claim on a direct basis, and first notes that Hurthle cell tumor of the thyroid is not among the diseases that warrant presumptive service connection, as listed at 38 U.S.C.A. § 1112 (c)(2)(A-P) (West 2002 & Supp. 2005). In this regard, although presumptive service connection is warranted for "cancer of the thyroid", see 38 U.S.C.A. § 1112 (c)(2)(B), not all tumors are cancerous, and the private pathology reports indicate that his tumor was benign. See also opinions from a VA physician, R.F.R., M.D., dated in May 2003 and November 2004, (stating that the veteran's Hurthle cell tumor of the thyroid lobe is a benign tumor, and that it is a non-malignant thyroid nodular disease). The Board further notes that none of the aforementioned opinions from the three private physicians asserts that the veteran's thyroid tumor was malignant. Accordingly, service connection on a presumptive basis is not warranted. However, non-malignant thyroid nodular disease is a radiogenic disease. See 3.311(b)(2) (xvii). In such a case, 38 C.F.R. § 3.311 does not provide for presumption for service connection for radiogenic diseases. Rather, this regulation provides special procedures for evidentiary development and adjudication of a claim. Implicit in the regulation is the requirement for evidence of a medical nexus between the exposure to the ionizing radiation and the current disability. In accordance with 38 C.F.R. § 3.311, in February 2007, the RO obtained a radiation dose estimate from the DTRA. In June 2007, the RO forwarded the case to the Director of the Compensation and Pension Service, who in turn requested an opinion from the Under Secretary for Health as to the relationship between the veteran's Hurthle cell tumor of the thyroid and his exposure to ionizing radiation during service. In a reply, dated that same month, the VA's Chief Public Health and Environmental Hazards Officer (CPHEHO), who is a physician, essentially stated that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) does not address benign thyroid nodules, and that, based on a study of Japanese atomic bomb survivors, there was a six percent likelihood that benign thyroid nodular disease was caused by the veteran's exposure to ionizing radiation during service. The CPHEHO stated that a comparison study for thyroid cancer resulted in a probability of causation of 31.50 percent. The CPHEHO concluded that it was unlikely that the veteran's Hurthle cell tumor of the thyroid was related to his exposure to ionizing radiation during service. The Board must find that this opinion is entitled to great probative weight, as it involves a detailed review of the medical evidence. That same month, in an Advisory Opinion, in accordance with 38 C.F.R. § 3.311, the Director of the Compensation and Pension Service, citing the medical opinion from the Under Secretary for Health and a review of the evidence in its entirety, expressed an unfavorable opinion as to the relationship of the veteran's Hurthle cell tumor of the thyroid and his exposure to ionizing radiation during service. Given the foregoing, service connection for Hurthle cell tumor of the thyroid is not warranted under the direct procedures as set forth in 38 C.F.R. § 3.311. As noted above, service connection may be granted on the basis of a post-service initial diagnosis of a disease when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d). The June 2007 CPHEHO opinion states that the IREP cancer model does not address benign thyroid nodules, and the opinion was based on a study of Japanese atomic bomb survivors. However, the claims file includes three opinions from private physicians, all of whom assert that the veteran's Hurthle cell tumor of the thyroid may be related to his exposure to ionizing radiation during service. In particular, Dr. J.C. concluded that it "is highly likely" that the veteran's Hurthle cell tumor of the thyroid is related to his exposure to ionizing radiation during service. The Board finds that the medical opinions and articles submitted by the veteran are, collectively, also entitled to great probative weight. In adjudicating this claim, the Board has also considered the doctrine of reasonable doubt. As the U.S. Court of Appeals for Veterans Claims (Court) has written: A unique standard of proof applies in decisions on claims for veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact-finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The Court noted that under this standard, when the evidence supports the claim or is in relative equipoise, the appellant prevails. Where the "fair preponderance of the evidence" is against the claim, the appellant loses and the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 56. "A properly supported and reasoned conclusion that a fair preponderance of the evidence is against the claim necessarily precludes the possibility of the evidence also being in an approximate balance." Id. at 58. The Court has further held that where there is "significant evidence in support of the appellant's claim," the Board must provide a "satisfactory explanation" as to why the evidence is not in equipoise. Williams v. Brown, 4 Vet. App. 270, 273 (1993). Under the circumstances, the Board finds that the evidence is at least in equipoise, and that, affording the veteran the benefit of all doubt, that service connection for Hurthle cell tumor of the thyroid is warranted. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for Hurthle cell tumor of the thyroid is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs