Citation Nr: 1113751 Decision Date: 04/07/11 Archive Date: 04/15/11 DOCKET NO. 08-36 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a pancreatic disorder, claimed as pancreatitis, to include as due to ionizing radiation exposure. 2. Entitlement to service connection for a gallbladder disorder, to include as due to ionizing radiation exposure. 3. Entitlement to service connection for a bile duct disorder, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Bosely, Associate Counsel INTRODUCTION The Veteran had active service from February 1954 to April 1958 and from May 1958 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was exposed to radiation during active service. 2. The competent evidence does not demonstrate any findings of pancreas, bile duct, or gallbladder cancer; benign disorders of the pancreas, bile duct, or gallbladder have not been related to active service, to include exposure to radiation. CONCLUSIONS OF LAW 1. The weight of the evidence is against a finding that a pancreas disorder, to include pancreatitis and pseudocysts, is due to disease or injury that was incurred in or aggravated by active service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2010). 2. The weight of the evidence is against a finding that a gallbladder disorder, currently manifested as status post cholecystectomy, is due to disease or injury that was incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2010). 3. The weight of the evidence is against a finding that a bile duct disorder is due to disease or injury that was incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may 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); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in February 2007 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claims, including as related to claimed radiation exposure, and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. 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 claims. The Veteran was not afforded a VA examination in this case. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records (STRs) show a tentative diagnosis of pancreatitis, but this, as explained below, was subsequently ruled out. Otherwise, the STRs are silent as to any complaints or treatment for a pancreas disorder, gallbladder disorder, or bile duct disorder. Moreover, the post-service evidence does not indicate any current complaints or treatment referable to the claimed disorders until several years following separation. Additionally, the lay statements do not expressly endorse a history of continuous symptomatology. Furthermore, the record contains no competent evidence suggesting a causal relationship between the current disability and active service. Finally, as explained below, the Veteran has not satisfied the criteria of 38 C.F.R. § 3.311 for consideration by the Under Secretary for Benefits, to include obtaining an advisory medical opinion from the Under Secretary for Health. Otherwise, a VA examination is not warranted based solely on the Veteran's own conclusory statements indicating that there is a relationship between radiation exposure during service and a present disability, because the record does not contain any factual basis supporting his statements. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). II. Analysis The Veteran contends that service connection is warranted for a pancreas disorder, claimed as pancreatitis, a chronic condition of the bile duct, and a gall bladder disorder, to include as due to in-service exposure to ionizing radiation. As the evidence is related, the Board will address the issues together. Service connection may be granted 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(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Also, certain chronic diseases, including calculi of the gallbladder, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. 38 C.F.R. § 3.301(c)(2). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. The Board's duty is to assess the credibility and weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran in the present case does not content that any claimed disorder began during active service. Nor does he contend that the claimed disorders are secondary to a service-connected disability. Rather, as indicated, he attributes his claimed disorders to ionizing radiation exposure during service. His service treatment records (STRs) include a DD Form 1141, which establishes that he was exposed to radiation at a Nevada test site from December 12, 1959, to July 31, 1960, and from January 1962 to December 1962. He had a accumulative total dose of 65 Mr. This DD Form 1141 therefore confirms that the Veteran was exposed to radiation during service. The post-service evidence, including a private (non-VA) February 2001 discharge summary, shows that the Veteran has a history of pancreatitis, with present pancreatic pseudocyst, and diverticular disease, for which he underwent exploratory laparotomy, cholecystectomy, attempted choledochosopy, intraoperative cholangiogram, and drainage of pancreatic pseudocyst times two. Accordingly, a present diagnosis is established. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a); Davidson, 581 F.3d at 1316. The remaining question is whether his present disorders are related to the confirmed in-service radiation exposure. Service connection for a disability claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by one of two different methods. See Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, a rebuttable presumption of service connection arises if "radiation-exposed veteran" later developed one of the radiogenic diseases listed in 38 C.F.R. § 3.309(d). See 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(d). These diseases are ones in which the VA Secretary has determined that a positive association with radiation exposure exists. The diseases listed in 38 C.F.R. § 3.309(d)(2) cited above are as follows: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myolomas; (x) lymphomas (other than Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary gland; (xv) cancer of the urinary tract; (xvi) bronchiolo-alveolar carcinoma; (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and, (xxi) cancer of the ovary. A "radiation-exposed veteran" is a veteran who was involved in a "radiation risk" activity during active service, as defined in 38 C.F.R. 3.309(d)(3)(ii). Here, the Veteran's DD Form 1141 does not make clear the name of the atmospheric detonation operations in which he participated, as defined in 38 C.F.R. § 3.309(d)(3)(v). Nonetheless, the Veteran's period of service and DD Form 1141 together show that it is at least as likely that he participated in Operation DOMINIC II/ PLOWSHARE for the period July 6, 1962, through August 15, 1962. Despite his participation in a radiation risk activity, service connection is not warranted here on a presumptive basis under 38 C.F.R. § 3.309(d), because the Veteran has not been diagnosed with a presumptive disease listed in 38 C.F.R. § 3.309(d)(2). Importantly in this regard, the diseases listed in 38 C.F.R. § 3.309(d)(2) include cancer of the pancreas, gall bladder, and bile ducts. In this case, the Veteran has been diagnosed with benign disease, rather than cancer, of the pancreas, gall bladder, and bile ducts. Thus, service connection is not warranted on this basis. The second method of demonstrating a disability claimed to be attributable to exposure to ionizing radiation during service is defined in the provisions of 38 C.F.R. § 3.311. Under these provisions, service connection may be established if (a) a veteran, who was exposed to radiation, develops a "radiogenic disease" that (b) became manifest within the time period defined for that disease by 38 C.F.R. 3.311(b)(5), and (c) if, after following special development procedures, the VA Undersecretary for Benefits determines that a relationship in fact exists between the disease and the veteran's exposure in service. "Radiogenic diseases" are those that may be induced by ionizing radiation, as listed at 38 C.F.R. § 3.311(b).The "radiogenic diseases" listed in 38 C.F.R. § 3.311(b) are essentially identical to those listed 38 C.F.R. § 3.309(d)(2), cited above, except that the following additional diseases are added: skin cancer; pancreatic cancer; kidney cancer; posterior subcapsular cataracts; non- malignant thyroid nodular disease; parathyroid adenoma; cancer of the rectum; and, any other cancer. As previously noted, the Veteran in this case has not been diagnosed with cancer of the pancreas, bile ducts, or gall bladder. As such, his diagnosed pancreas, bile ducts, or gall bladder, are not "radiogenic diseases" as listed in 38 C.F.R. § 3.311(b)(2). Accordingly, service connection is also not warranted on this basis. Where, as here, a claim is based on a disease other than one listed in 38 C.F.R. § 3.311(b)(2), VA shall nevertheless consider the claim under the provisions of 38 C.F.R. § 3.311 if a veteran has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). The Board finds, in this regard, that further development is not warranted under the provisions of 38 C.F.R. § 3.311, because the Veteran has not provided competent scientific or medical evidence that any claimed disorder is a radiogenic disease. His own lay opinion is not competent, as defined by 38 C.F.R. § 3.311(b)(4), on this issue. The Veteran submitted a June 2008 news journal article reporting that former civilian employees who "got sick" due to their work at Area 51 had become eligible for health payments. The article identifies the diseases only as "job-related cancers and other serious illnesses." The article does not reasonably identify the Veteran's pancreas, bile duct, or gall bladder disorders as radiogenic diseases, as required under 38 C.F.R. § 3.311(b)(4). Thus, no further development is warranted in this regard. In summary, the Veteran does not have a presumptive disease listed in 38 C.F.R. § 3.309(d) or a "radiogenic disease" as defined in 38 C.F.R. § 3.311. Accordingly, service connection is not warranted under either of the two methods for establishing service connection on the basis of exposure to ionizing radiation during service. See Hilkert, 11 Vet. App. at 289. The only remaining consideration is whether service connection may be warranted on a direct basis under the provisions of 38 C.F.R. § 3.303. On this issue, the evidentiary record contains no competent evidence indicating that the Veteran may have a pancreas, bile duct, and/or gall bladder disorder due to his exposure to radiation during service. The Veteran has offered his own opinion indicating such a relationship, but this issue concerns a medical question extending beyond an immediately observable cause-and-effect relationship. In fact, it is a highly complex medical issue involving an internal physical process (the development of a medical condition due to radiation exposure). As such, the question of etiology in this case may not be competently addressed by lay evidence. Thus, the Veteran's own assertions are without probative value. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. More importantly, the weight of the competent evidence shows that the Veteran's claimed disabilities developed after service and not due to any event during his service. In particular, the Veteran's STRs show in-service treatment on numerous occasions for symptoms of his (now service-connected) peptic ulcer disease. A December 1972 treatment note shows an assessment of peptic ulcer disease versus pancreatitis, but subsequent testing confirmed peptic ulcer disease. At his November 1973 service retirement examination, the Veteran endorsed a history of frequent indigestion and stomach, liver, or intestinal trouble, which the examiner noted was related to peptic ulcer since 1972. Otherwise, he denied a history of gall bladder trouble or gall stones, and the physical examination was negative. The Board finds that the STRs tend to weigh against the claims because they show that pancreatitis was specifically considered, but was ruled out by testing. Also weighing against the claims, the Veteran underwent a VA examination in May 1974, in connection with an unrelated claim. The VA examiner noted a history involving indigestion related to peptic ulcer and hypertension, first diagnosed in October 1966. Physical examination showed no enlargement of gallbladder or spleen. The VA examiner also reviewed results of contemporaneous testing, including an upper gastrointestinal series (UGI), and SMA-12 and SMA-6 series. The assessment was no organic gastrointestinal (GI) disease found; non-organic (functional) GI symptoms of pyrosis relieved by antacids and non-specific indigestion. The Board finds that the May 1974 VA examination tends to weigh against the claims because the examination was performed within one year of the Veteran's March 1974 service retirement examination. Moreover, the VA examination affirmatively demonstrates an absence of any pancreas, bile duct, or gall bladder disorder at that time. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the passage of many years between discharge from active service and the medical documentation of a claimed disability is some evidence weighing against a claim of service connection). The next pertinent evidence shows that several years later, in June 1977, the Veteran was admitted to a non-VA hospital for treatment of symptoms related to acute pancreatitis. At that time, X-rays of the gallbladder and the upper GI system showed no other abnormality except for some evidence of gastritis. Approximately three years later, in March 1980, the Veteran was again admitted to a non-VA hospital for treatment of symptoms, including acute abdominal pain, which were diagnosed as acute pancreatitis, etiology unknown, possibly secondary to alcohol or cholelithiasis. On follow-up in April 1980, a sonogram showed no gallbladder stones. The assessment at that time was acute pancreatitis resolved with no evidence of pseudocyst etiology, and there is a notation of "ETOH?". The Veteran then underwent outpatient follow-up during 1980 and 1981. In December 1981, the Veteran underwent another VA examination in connection with an unrelated claim. The VA examiner noted a history of peptic ulcer disease since 1974, but pancreatitis symptoms did not arise until 1978 or 1979. According to the VA examiner "[o]bviously the etiology of the pancreatitis was not the ancient acute gastric peptic ulcer since he did not have an active peptic ulcer on examination during a hospitalization" [emphasis in original] in March 1980. The VA examiner also noted that the April 1980 sonogram did not reveal gallstones, and pancreatic examination was negative for pseudocyst. The Veteran reported that he would consume approximately 12 cans of beer over a weekend, but no whiskey or wine. He gave no past history of chronic alcoholism. He reported having a sister with gallbladder disease. The VA examiner, in addition to reviewing the Veteran's history and current complaints, performed a thorough clinical evaluation, including review of laboratory testing results and a UGI series. Based on the examination results, the VA examiner's assessment, in pertinent part, was history of previous acute episodes of pancreatitis probably associated with alcohol ingestion (1978 through April 1980), with no active pancreatitis found on examination. The VA examiner further reported that present laboratory findings, including serum amylase, were normal. There was also nonvisualization of gallbladder without cholelithiasis, asymptomatic, cause unknown. The VA examiner explained that regardless of its etiology, once a patient has had acute pancreatitis, the ingestion of alcoholic beverages, even on a weekend basis, only may precipitate future episodes of acute pancreatitis, and is therefore contraindicated. The Veteran was advised to quit drinking. More recently, in July 2000, the Veteran was admitted to a private hospital for treatment of symptoms diagnosed as acute pancreatitis, idiopathic, with hyperlipidemia a possible explanation. A CT scan showed no clear evidence of gallstones or mass. In October 2000 a private CT scan showed two large pancreatic pseudocysts, but the pancreas was otherwise normal. The most recent evidence, as indicated, shows that the Veteran has had ongoing treatment, including hospital admissions, for treatment of his claimed disorders. The post-service evidence, in summary, shows a history of alcohol use which the December 1981 VA examiner found as the most likely cause of the Veteran's pancreatitis. The Board finds that the December 1981 VA examiner's opinion is highly persuasive because the examiner thoroughly and accurately reviewed the Veteran's history, and then provided a clear opinion. See Nieves-Rodriguez, 22 Vet. App. at 304. Although the STRs indicate alcohol use during service, the Veteran is not service-connected for an alcohol disorder, and service connection is otherwise unavailable for a disorder caused by alcohol abuse. See 38 C.F.R. § 3.1; VAOPGCPREC-7-1999; VAOPGCPREC 2-1998. In light of this record, the Board finds that the weight of the evidence is against the claims on a direct basis. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. In conclusion, the Board finds that the preponderance of the most probative evidence of record weighs against the claim of service connection for a pancreatic disorder, a gall bladder disorder, and a bile duct disorder. Accordingly, the claims are denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In reaching this conclusion the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a pancreatic disorder, claimed as pancreatitis, is denied. Service connection for a gall bladder disorder, status post cholecystectomy, is denied. Service connection for a bile duct disorder is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs