Citation Nr: 0815182 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 04-28 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a convulsive disorder with headaches, status post craniotomy due to brain abscess, claimed as secondary to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Christopher McEntee, Associate Counsel INTRODUCTION The veteran had active service from March 1955 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2002 of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. FINDING OF FACT The preponderance of the competent evidence of record is against finding that a convulsive disorder with headaches, status post craniotomy due to brain abscess, was caused by any in-service exposure to ionizing radiation. CONCLUSION OF LAW The veteran's convulsive disorder with headaches, status post craniotomy due to brain abscess, claimed as secondary to exposure to ionizing radiation, was not incurred in or aggravated by military service, nor may it be presumed to have incurred therein. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran claims entitlement to service connection for residuals of a brain disorder. In the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA satisfied VCAA notification requirements here letters from VA dated in July 2001, May 2002, and March 2006. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. VA informed the veteran of the elements that comprise his claim and of the evidence needed to substantiate the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA requested from the veteran relevant evidence, or information regarding evidence which VA should obtain (the Board also finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (veteran should be notified that he should submit any pertinent evidence in his possession). VA advised the veteran of the respective duties of the VA and of the veteran in obtaining evidence needed to substantiate his claim. And VA provided notification to the veteran prior to the initial adjudication of his claim in December 2002. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). The Board notes a deficiency with VCAA notification, however. VA did not provide the veteran with notice on disability evaluations and effective dates until March 2006, after the initial adjudication in December 2002. See Dingess/Hartman, supra. Nevertheless, the Board finds that any presumed prejudice incurred by the veteran is rebutted by the record, and that proceeding with a final decision is appropriate here. See Sanders v. Nicholson, 487 F.3d 881 (2007). See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. As will be noted below, the veteran's claim will be denied. So no evaluation or effective date will be assigned here. Moreover, the Board notes that, following full and proper notice, VA, in accordance with Mayfield, readjudicated the veteran's claim in a June 2006 Supplemental Statement of the Case. As such, the veteran will not be negatively affected by the untimely notice here. In sum, the Board finds that VA satisfied VCAA notification requirements in this matter. With regard to VA's duty to assist, the VCAA requires that VA make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate a claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. The RO obtained medical records relevant to the appeal. VA afforded the veteran the opportunity to appear before hearings to voice his contentions. And VA provided the veteran with an opinion from an Independent Medical Expert (IME opinion). In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the veteran in this appeal. Therefore, the veteran has not been prejudiced as a result of the Board deciding his claim here. II. The Merits of the Claim for Service Connection The veteran claims entitlement to service connection for a convulsive disorder with headaches, status post craniotomy due to brain abscess, claimed as secondary to exposure to ionizing radiation. The veteran and his representative detail the following alleged chain of causality - in-service exposure to radiation caused the veteran a "compromised immune system"; in- service dental treatment, hernia surgery, and/or a blow to the head from a large wooden crate led to the development of an in-service brain infection that occurred due to the weakened immune system; the brain infection lay dormant for many years until 1986-87 corticosteroid treatment for a skin disorder activated the brain infection, resulting in a brain abscess requiring surgery; the veteran underwent a craniotomy surgery in March 1988 to remove the brain abscess; and the surgery caused current residuals to include a convulsive disorder with headaches. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110 (2002); 38 C.F.R. § 3.303(a) (2007). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (2002); 38 C.F.R. § 3.303(a) (2007). Service connection may be awarded where the evidence shows that a veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (2007). If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases which may be presumptively service connected if manifest in a radiation-exposed veteran. A "radiation-exposed" veteran is one who participated in a radiation-risk activity. A "radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device or participation in the occupation of Hiroshima or Nagasaki between August 6, 1945 and July 1, 1946. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The veteran cannot avail himself of this avenue of recovery. A brain abscess disorder is not among the specific listed disorders eligible for the service connection presumption under 38 U.S.C.A. § 1112(c) or 38 C.F.R. § 3.309(d). The second avenue of recovery here is found under 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed veteran may be service connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. § 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). The veteran cannot avail himself of this second avenue of recovery either. Again, a brain abscess is not among the specific listed diseases eligible for the service connection presumption under 38 C.F.R. § 3.311(b)(2). Regarding the third avenue of recovery here, a veteran may also establish service connection directly under 38 C.F.R. § 3.303. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The fact that the veteran is not entitled to service connection as a result of exposure to ionizing radiation under 38 C.F.R. § 3.309 and 3.311 does not preclude an evaluation as to whether the veteran is entitled to direct service connection under 38 C.F.R. § 3.303. In order to warrant service connection under this regulation, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Pond v. West, 12 Vet. App. at 341, 346 (1999). The veteran has presented competent private medical evidence showing that he underwent a March 1988 left brain craniotomy for a brain abscess. Moreover, subsequent medical evidence supports the veteran's claim to having residuals from this surgery, to include a convulsive disorder with headaches, and other mental and psychiatric symtpomatology. The first element of Pond is therefore established here. Pond, 12 Vet. App. at 346. See also 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. As to the second element of Pond, the Board finds the evidence in equipoise on the issue of whether the veteran was exposed during service to ionizing radiation. On the one hand, there is no objective evidence in this matter showing that the veteran was exposed to radiation - he admitted in his January 2007 Board hearing that he received no treatment for radiation-related disorders in service; July 1964 reports of medical examination and history - pertaining to the veteran's reserve service - note radiation exposure based on the veteran's own history, but do not note any disorders that may have been radiation related; and an October 2002 letter from the Department of the Army's Radiation Standards and Dosimetry Laboratory states that no information pertaining to radiation exposure was uncovered for the veteran. On the other hand, the record indicates that service medical records may have been destroyed by fire while in the possession of the government. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (where records are apparently lost while in the possession of the government, a heightened obligation applies to consider carefully the benefit-of-the- doubt rule); the veteran provided credible testimony in his January 2007 Board hearing regarding his claim to radiation exposure; a January 1957 letter of appreciation submitted by the veteran indicates that the veteran was attached to a "Special Weapons" command; and the veteran's DD-214 shows he served as an "atomic weapons electrical assembly technician." After reviewing this evidence, the Board finds reasonable doubt surrounding the veteran's claim that he experienced exposure to radiation in service. So the Board cannot find that the evidence preponderates against the veteran's claim that he was exposed to ionizing radiation during service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim for benefits the evidence must preponderate against that claim); see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, the second element of Pond is established here. Nevertheless, the Board finds service connection unwarranted here because the third element of Pond is not established - the preponderance of the medical evidence of record indicates that the veteran's apparent radiation exposure, sometime between March 1955 and January 1957, did not relate to the brain abscess that led to his craniotomy in March 1988, and to the residuals he currently experiences. The Board notes a division of opinion on this matter of medical nexus. There are four medical opinions of record addressing the issue of whether the veteran's service, and ostensible radiation exposure, relate to his brain abscess. After reviewing this evidence, the Board finds the evidence against the claim to be of more probative value, and finds that that evidence preponderates against the evidence supporting the veteran's claim. See Evans v. West, 12 Vet. App. 22, 30 (1998) (the Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim). Two of the opinions of record do not offer supportive or negative evidence here. December 2000 and June 2004 private opinions state that it is possible that the veteran's apparent radiation exposure related to his abscess. As neither opinion addresses the issue of probability, these opinions are neither probative nor persuasive with regard to the particular issue of causality in this matter. Two other opinions of record are probative however - a February 2006 letter from a private examiner found the veteran's abscess related to his service, while the letter of record from the IME, dated in December 2007, found the veteran's abscess and subsequent surgery unrelated to the veteran's service. The February 2006 private examiner supported the veteran's theory of causation. He repeated the veteran's claimed history of exposure to radiation. He noted the veteran's claimed dental treatment during active service. He stated that brain abscesses are usually a direct result of blood borne systemic infection. And then he surmised that the following sequence of events occurred in the veteran's case - the veteran was exposed to radiation, he developed leucopenia and a weakened immune system, bacteria from the mouth probably landed in the veteran's brain, and, despite the veteran's weakened immune system, the veteran's immune system was able to "wall off" and stop the infection from progressing. Nevertheless, the examiner inferred that these bacteria likely remained in the brain in the form of an abscess for many years. And he stated that the brain infection and abscess "probably became active" in 1987 as a result of corticosteroid treatment for dermatitis. In closing his opinion, the private physician stated that it was a "medical certainty" that the veteran's claimed in-service radiation exposure caused his brain abscess. By contrast, the IME opinion states that the "thought that the appellant's abscess was present for decades does not make scientific sense." The examiner found it unlikely that radiation exposure in the 1950s led to a brain abscess in the 1980s. Rather, this examiner found dental treatment one month prior to the March 1988 surgery the likely cause of the abscess. In support, this examiner noted treatment notes from the 1988 surgery referring to dental treatment. He also noted the veteran's treatment with topical and oral steroids in the year or two prior to the diagnosis of brain abscess. But he found this treatment an unlikely "causative agent" due to the "long period" between treatment and diagnosis of abscess. As to the theory that the veteran had leucopenia which led to a brain infection, the IME examiner stated the following - according to the record, "at no time did [the veteran] have a documented low white blood cell count." And he proceeded to state that he would not expect a low blood count at the time of the abscess because the radiation exposure occurred 30 years prior to the abscess. Indeed, the IME examiner found it extremely unlikely that "clinically meaningful immune system effects from radiation exposure would remain 30 years later." And he stated that the lack of evidence of any other infection is evidence that the veteran's immune system was not weakened. Again, the Board finds both the February 2006 private letter, and the December 2007 IME opinion to be probative. However, the Board ultimately finds the IME opinion to be more persuasive. The private opinion is based entirely on the veteran's own reported history, and the examiner did not indicate that the claims file had been reviewed prior to rendering the opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based on the recitations of a claimant). Moreover, the Board finds the opinion speculative on the significant issue here - the examiner stated that leucopenia likely caused a weakening that led to brain infection. But the record contains no evidence that the veteran had leucopenia, or any other white blood cell decrease, even though he may have been exposed to radiation in the 1950s. By contrast, the IME opinion is based on a review of the record, to include a review of the February 2006 private opinion. And the IME opinion is supported by a rationale, which is supported by medical evidence of record. Though the private examiner rests his logic on his speculation that the veteran may have had leucopenia in the 1950s, the IME examiner premised his opinion on actual evidence - that the veteran underwent dental treatment one month prior to his March 1988 craniotomy. Moreover, this examiner undercuts the private examiner's statement regarding leucopenia - he noted the absence of evidence showing this disorder, and he noted that the absence of evidence of any other infection indicates that the veteran likely did not have such a disorder. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (supporting clinical data or other rationale should accompany medical opinion); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). Based on the IME opinion and supporting evidence of record, the Board finds that the evidence addressing the issue of medical nexus - between radiation exposure and the March 1988 craniotomy - preponderates against the veteran's claim. See Alemany, supra. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has closely reviewed and considered the veteran's statements in this matter, and those from his spouse. While these statements may be viewed as evidence, the Board must also note that laypersons without medical expertise or training are not competent to offer medical evidence on matters involving diagnosis and etiology. Therefore, the statements alone are insufficient to prove the veteran's claims. Ultimately, a lay statement, however sincerely communicated, cannot form a factual basis for granting a claim requiring medical determinations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). ORDER Entitlement to service connection for a convulsive disorder with headaches, status post craniotomy due to brain abscess, claimed as secondary to exposure to ionizing radiation, is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs