Citation Nr: 1028715 Decision Date: 07/30/10 Archive Date: 08/10/10 DOCKET NO. 02-11 309 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for macular degeneration due to non-ionizing radiation exposure. 2. Entitlement to service connection for bronchial mucosa associated lymphoma tissue (B-MALT) status post left lung lobectomy due to non-ionizing radiation exposure (hereinafter "bronchial mucosa"). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to December 1957 and from July 1958 to June 1962. This case initially came before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2001 rating decision of the RO. The claims on appeal have been recharacterized as they appear on the preceding page. The matters were previously before the Board in December 2003, July 2007 and February 2010. On those occasions the claims were remanded for further development, adjudication and/or to satisfy an outstanding hearing request. The matters have been returned to the Board and are now ready for appellate disposition. The Veteran originally presented testimony before the Board in June 2003. During the pendency of the appeal, the Veterans Law Judge who conducted the June 2003 hearing left the Board. The Veteran opted for another hearing and presented additional testimony in March 2008 before the undersigned Veterans Law Judge. Both hearing transcripts are of record. The Veteran has raised claims of service connection for prostate cancer and residuals of a hepatitis infection, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has been apprised of what evidence would substantiate the claims for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in these matters has been received. 2. The Veteran's claimed exposure to non-ionizing radiation, notably high levels of such, has not been confirmed by the evidence of record. 3. Macular degeneration is not shown to be due to a documented injury or other event of the Veteran's military service, including any exposure to non-ionizing radiation. 4. Bronchial mucosa is not shown to be due to a documented injury or other event of the Veteran's military service, including exposure to non-ionizing radiation. CONCLUSIONS OF LAW 1. Macular degeneration is not due to disease or injury that was incurred in or aggravated by active service; nor may any be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2009). 2. Bronchial mucosa is not due to disease or injury that was incurred in or aggravated by active service; nor may any be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters: Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b) (2009). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In the present case, the Veteran filed his claim prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the Veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. 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 AOJ'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 AOJ) 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 AOJ decision by way of a letters sent to the Veteran in May 2004, November 2005, January 2006, March 2006, and March 2010. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. Notice pursuant to the Dingess decision was also included in the March 2010 letter. Although the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of supplemental statements of the case (SSOC) issued in January 2007 and April 2010 after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). The information and evidence currently associated with the claims file consists of the Veteran's service treatment and personnel records, post-service VA and private treatment records, lay statements, reports of VA and independent medical examination, articles regarding microwave radiation exposure, and the transcripts from the June 2003 and March 2008 Board hearings. The Veteran has not identified any other evidence which has not been obtained. In September 2000, the RO was notified that no records were available from the University of Cincinnati Hospital on the date (January 1995) requested. Any further attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(1). The Board notes that additional evidence, to include statements of the Veteran and articles regarding radiation exposure, was received after the April 2010 SSOC was issued. As this evidence was duplicative of the evidence already of record, remand for initial review by the RO is not necessary. 38 C.F.R. § 20.1304(c). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159(b), 20.1102 (2009); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any deficiency in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, it is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128- 30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The Veteran asserts that his macular degeneration and bronchial mucosa disorder are the result of radiation exposure during his period of active military service. Specifically, he maintains that he was exposed to high levels of non-ionizing radio frequency radiation (RFR) from microwaves produced by antennas and radar equipment, search and height finding, while performing duties as an Aircraft Control and Warning Operator. In a November 2001 statement, the Veteran elaborated that, during June 1954 to December 1957, he was stationed at the 784th AC&W Radar Squadron of the United States Air Force in Fort Knox, Kentucky, where he was exposed to early warning search and height finding radar, as well as a dish antenna less than 50 yards from his operation. He indicated that, from July 1958 to February 1959, he was stationed at Shaw Air Force Base where his building was adjacent to radar dishes, which swept radiation past his building three times every minute. The Veteran also reports that, between February 1959 and February 1962, he was stationed in Spain, where he was exposed to search radar located on the roof of his operations' building. Finally, he maintains that between February 1962 and June 1962 he was stationed in Sweetwater, Texas, where he was exposed to radar dishes located a few hundred feet from his operations' building. After careful consideration of all procurable and assembled data, the Board finds that service connection is not warranted in this case. At the outset, the Board finds that the Veteran cannot be considered a radiation exposed Veteran due to participation in a radiation-risk activity. Consequently, the presumptions afforded by 38 C.F.R. § 3.309(d) are not applicable to this Veteran. Moreover, as this claim is not based on ionizing radiation exposure, nor does the record contain any evidence of such, the provisions of 38 C.F.R. § 3.311 are also not for application in this case. Turning first to direct service connection, the Board must note that the Veteran does not contend (nor does the evidence of record show) that his macular degeneration and bronchial mucosa disorder were directly related to an injury or event of his period of active duty other than the claimed exposure to RFR. The Board finds it pertinent that service treatment records are wholly devoid of treatment or diagnoses regarding macular degeneration or a bronchial mucosa disorder. Post-service, the first objective evidence of bronchial mucosa disorder was in January 1995. Age related macular degeneration (ARMD) was first objectively demonstrated by the evidence of record in 1999. This represents a 35-year (bronchial mucosa) and 37-year (macular degeneration) evidentiary gap between the Veteran's period of active service ending in 1962 and the earliest indications of bronchial mucosa in 1995 and macular degeneration in 1999. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). This absence of evidence of complaints or treatment constitutes negative evidence against the claims because it tends to disprove that macula degeneration and bronchial mucosa was the result of an incident of the Veteran's active service other than the claimed non-ionizing radiation exposure. Id. As neither the Veteran's claimed conditions is shown to have been present during service or for years thereafter, service connection can only be granted if there is some competent evidence linking either to a documented event or incident of his service. Here, there is no such competent evidence that establishes a relationship to an identified injury or other incident of service. The Veteran's contentions are that his macular degeneration and bronchial mucosa disorder were caused by exposure to RFR. In support of his claim, the Veteran submitted statements from JHO and EGV, which indicate the Veteran's work place was in close proximity to both search and height finding radar equipment, but that the Veteran did not work directly with such equipment. While the Veteran's service personnel records confirm the Veteran performed duties as a radar operator and aircraft control and warning operator and technician, there has been no confirmation of claimed high levels of radiation exposure or low levels for that matter. Notably, a DD 1141, Record of Radiation of Exposure, has not been located and is presumed not to have been prepared for this Veteran. In October 2000, the Headquarters of the United States Air Force indicated there was no record confirming any exposure of the Veteran to RFR In November 2004, the Air Force again indicated that a query of the Master Radiation Exposure Registry was negative for external or internal exposure data on the Veteran. The letter added that this registry was the single repository for occupational radiation exposure monitoring for all Air Force personnel and that records dated back to 1947. In February 2006, the Air Force further indicated that they were not able to reconstruct a precise dose estimate for the Veteran based on his duties as a radar technician. There was no exposure data for the particular radar system the Veteran worked on or any detailed information on the Veteran's duties that would be required for such an estimate. Separate letters dated in February 2006 from the Air Force Institute for Operational Health found no bioassay records on the Veteran. They further indicated that a search of electronic records from the Master Radiation Exposure Registry, as well as microfilm archived and paper form records, and analytical sample reports used to compute radioactive material intake and/or internal radiation dose were not found for the Veteran. In June 2006, the Air Force Institute for Operational Health indicated there was a negative finding of occupational microwave and RFR exposures for this Veteran. While the Veteran argued that such record of exposure did not exist because the Air Force was not concerned about microwave or RFR exposure between 1954 and 1962, this has not been shown by the evidence of record. These letters indicate that such records of radiation exposure were dated as early as 1947. That argument aside, these multiple attempts to confirm non-ionizing radiation exposure as claimed by the Veteran, specifically high level exposure, has not been objectively demonstrated. Even assuming some exposure to low levels of RFR, though again not objectively demonstrated, the preponderance of the evidence fails to establish a relationship to the claimed radiation exposure and the Veteran's development of macular degeneration and a bronchial mucosa disorder. In October 2000, the Chief of the Radiation Protection Division indicated that epidemiological studies provided no clear evidence of detrimental effects in humans from chronic exposure to RFR and that it had not been linked to cancer. The letter did state that ocular damage was found in individuals who were exposed to RFR "well in excess" of the limits and at levels and duration to cause thermal heating of the eye, but that studies did not show a significant increase in cataracts. In February 2006, the Chief of Radiation Protection Division revealed that the National Council on Radiation Protection and Measurements, The World Health Organization, and the National Radiological Protection Board found no long-term effects (including cancer) from low-level exposures to RFR. The letter further indicated that an extensive epidemiological study of Navy personnel working with radar systems did not find any adverse health effects that could be attributed to RFR exposure. In a June 2003 letter, from Dr. CHL, Fellow of the American College of Obstetricians and Gynecologists, opined that it was more likely than not that the Veteran's bronchial mucosa and macular degeneration were residuals of his RFR exposure. Dr. CHL provided no rationale for his opinion. He simply indicated that he had reviewed articles on RFR and the Veteran's DD 214 showing the occupation of the Veteran being consistent with his claim. The Board is not required to accept this doctors' opinion as it is based upon the Veteran's recitation of medical history, notably an unsubstantiated claim of high level exposure to RFR. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus, this opinion is not considered probative of the matter on appeal. See Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). The Board finds that with respect to the evidence presented, greater weight is to be accorded to the findings of the October 2006 VA examination and the January 2009 and October 2009 Independent Medical Expert (IME) opinions. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches, as is true of any evidence, the credibility and weight to the attached medical opinions are within the province of the Board). In this regard, in October 2006, the VA examiner opined that the bronchial mucosa disorder was not caused by or the result of exposure to RFR. The examiner reviewed the entire claims and computer file of the Veteran, as well as the literature he submitted. The examiner indicated that the literature submitted showed little relationship to low level exposure to RFR and dealt simply with high level or overexposure and extrapolation from such high or over exposure to low dose RFR was not possible. The examiner noted that the Veteran denied symptoms of overdose during his Board hearing. The examiner stated that the literature did not suggest that there was injury at a cellular level or at a molecular level by low level RFR or a direct relationship between cancer and RFR. The examiner concluded that he talked to a pathologist who was not aware of any relationship between RFR and any type of cancer. In a January 2009 IME, the examiner opined that that the Veteran's development of primary pulmonary lymphoma was unlikely to have resulted from the claimed exposure to non-ionizing radiation. The examiner indicated that a review of the Veteran's medical history and literature search found that the Veteran's lymphoma accounted for less than one percent of all lymphomas and was noted to occur in association with autoimmune diseases, certain immunodeficiency states, infections and smoking. The examiner stated there was no instance of its specific association with non-ionizing radiation. The examiner indicated that while the risk of development of cancer when exposed to radiation remained controversial, the preponderance of the studies negated such an association. The examiner further revealed that none of the studies mentioned or measured the occurrence of an extranodal primary pulmonary lymphoma in the exposed population. In an October 2009 IME report, the examiner opined that the Veteran's macular degeneration was less likely than not related to the Veteran's military service , including RFR. The examiner reasoned the Veteran had 20/20 vision at induction and separation from service and was never treated for any eye condition during service. The examiner indicated the Veteran denied any symptoms of acute high-energy RFR. The examiner noted that ARMD was diagnosed in 1999 and risk factors for macular degeneration included, among other things age, race, genetics and immune system. He indicated that specifications for the search and height finding radar equipment claimed by the Veteran was found on the Internet and showed that the beam width of rotating units were quite narrow for accuracy and used pulsed transmission. The examiner stated that, without revealing protected personal information, a discussion with the Captain of the Radiation Protection Division of the Air Force indicated the only way to be exposed to high doses of non-ionizing radiation from these units would be to climb up on the units or to work on the emitter with the power on. While low level RFR might be higher than at a non- radar sites, there was no proof of the cumulative effects for long-term low level exposure. The only proven effects of RFR were thermal and high doses produced acute signs and symptoms. The examiner reviewed the articles contained in the claims folder and found that no human population studies had shown significant ocular effects from low-level RFR exposure over extended time periods. The other articles dealt with high level or overexposure, which was not confirmed for this Veteran. The examiner concluded the Veteran had none of the symptoms of acute high level RFR or microwave exposure. There were no eye problems in service, and it was unlikely that any eye condition related to his years of service as a radar operator would show up over 30 plus years later. The examiner further indicated that there was no report in the extensive peer reviewed literature of any findings in the retina of the eye related to chronic RFR. The examiner also indicated that he discussed the case with three vitreoretinal surgeons, without revealing the Veteran's identity. One was an ocular oncologist, the second was an expert in apoptosis of the retina, and the third was the senior Retinal Fellow who provided vitreoretinal care for veterans and none of them believed there was any possibility that the Veteran's macular degeneration was related to his exposure to RFR non-ionizing radiation. The Board notes that the Veteran has provided medical treatise evidence in support of his claims, i.e. articles regarding exposure to RFR. However, the principles discussed do not specifically relate macular degeneration or his bronchial mucosa disorder to low-level exposure or refer specifically to this Veteran. Sacks v. West, 11 Vet. App. 314, 317 (1998)(citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Wallin v. West, 11 Vet. App. 509 (1998). In fact, as noted, most dealt with high level RFR exposure or over exposure. Notably, one dealt with testicular cancer and exposure to radar guns by police officers; clearly not the case in the instant matter. While medical treatise evidence can provide important support when combined with an opinion of a medical professional, in the instant case, as discussed above, a probative nexus opinion is not of record. Mattern v. West, 12 Vet. App. 222, 228 (1999). The Board is cognizant that the Veteran maintains that suffers from macular degeneration and a bronchial mucosa disorder as a result of exposure to high levels of RFR in service, and that the Veteran is competent to report his symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board cannot give great weight and credibility to the Veteran's account since there was no evidence of the claimed high level or even low level RFR exposure or manifestations of the claimed conditions in service or for many years thereafter. See Rucker, 10 Vet. App. 67 at 74. The Board notes the Veteran submitted lay statements in support of his claim, which indicated that he worked in close proximity to search and height finding radar; however, these statements are not credible for the purpose of establishing a nexus. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Although the Veteran reports having macular degeneration and a bronchial mucosa disorder that is related to exposure to high levels of RFR in service, there is simply no medical evidence on file supporting his lay assertions. His statements alone cannot constitute competent evidence of a medical nexus opinion as only those medically trained are competent to diagnose a condition and identify likely etiology. See Espiritu, 2 Vet. App. at 494-95. In sum, the preponderance of the evidence is against the claims and the appeals involving service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 57 (1990). ORDER Service connection for macular degeneration to include as due to non-ionizing radiation exposure is denied. Service connection for a bronchial mucosa disorder to include as due to non-ionizing radiation exposure is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs