Citation Nr: 1120770	
Decision Date: 05/27/11    Archive Date: 06/06/11

DOCKET NO.  05-35 337	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for squamous cell carcinoma of the right tonsil, to include as due to exposure to ionizing radiation.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from October 1963 to October 1965. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the Veteran's claim of entitlement to service connection for squamous cell carcinoma of the right tonsil claimed as due to exposure to ionizing radiation.

The Veteran and his spouse provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2009.  A transcript of this hearing has been associated with the Veteran's VA claims folder.

In March 2009, the Board remanded this case for further development to include verification through official channels of the Veteran's purported exposure to ionizing radiation while on active duty.  All development directed by this remand appears to have been completed, and was acknowledged as such by the Veteran's accredited representative in an April 2011 statement.  Therefore, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998).


FINDINGS OF FACT

1.  All reasonable notification and development necessary for the equitable disposition of the instant case have been completed.

2.  The preponderance of the evidence is against a finding that the Veteran was exposed to ionizing radiation while on active duty.

3.  The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's squamous cell carcinoma of the right tonsil was incurred in or otherwise the result of his active military service.


CONCLUSION OF LAW

Service connection is not warranted for the Veteran's squamous cell carcinoma of the right tonsil, to include as due to ionizing radiation.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.311 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the Veteran was sent pre-adjudication notice via letters dated in February and March 2003, both of which were clearly sent prior to the August 2003 rating decision that is the subject of this appeal.  He was also sent additional notification via a March 2009 letter, followed by readjudication of the appeal by a June 2010 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  

Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his current appellate claim to include special provisions pertaining to claims based upon exposure to ionizing radiation, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case.  As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra.  Moreover, the March 2009 letter included the information regarding disability rating(s) and effective date(s) mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.   See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).   The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.   The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.   See 38 C.F.R. § 3.159(b)(1).)

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied.  The Veteran's service treatment and personnel records are on file, as are various post-service medical records.  Moreover, efforts were undertaken to verify the Veteran's account of his purported in-service exposure to ionizing radiation that are consistent with the relevant regulatory provisions on such matters.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the January 2009 Board hearing.  Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested.  Specifically, he has not indicated there is outstanding evidence which documents his purported in-service radiation exposure, nor which otherwise relates his squamous cell carcinoma of the right tonsil to his active service.

With respect to the aforementioned January 2009 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claim.  However, as detailed above the Board has already determined that the Veteran received adequate notification which apprised him of the elements necessary to substantiate this claim.  Moreover, the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the claim; i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim(s).  The VLJ did ask questions to clarify the Veteran's contentions, and to determine if all relevant evidence was of record.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. 

The Board also notes that no VA medical examination was accorded to the Veteran regarding this case.  However, for the reasons stated below, the Board finds that the evidence of record is sufficient to resolve this case, and that no further development such as a medical examination or opinion is warranted based on the facts of this case.

In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

Legal Criteria

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).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Veteran has contended that his squamous cell carcinoma of the right tonsil is due to in-service exposure to ionizing radiation.  Under the law, service connection for disability based on exposure to ionizing radiation can be demonstrated by three different methods.  See Rucker v. Brown, 10 Vet. App. 67, 71 (1997).  

First, there are certain types of cancer that are presumptively service-connected when they occur in "radiation-exposed Veterans."  38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d).  This category of "radiation-exposed Veterans includes those Veterans who participated in a "radiation-risk activity."

Diseases presumptively service connected for radiation-exposed Veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary.  38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d)(2).

Second, "radiogenic diseases" may be service connected, provided that certain conditions are met, pursuant to 38 C.F.R. § 3.311.  To consider a claim under section 3.311, the evidence must show the following: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b).  If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. 
§ 3.311(b)(1)(iii).  For purposes of 38 C.F.R. § 3.311, the term "radiogenic disease" means a disease that may be induced by ionizing radiation.  38 C.F.R. § 3.311(b)(2).

The regulation states that the term radiogenic disease shall include: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2).

Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that disease diagnosed after discharge is the result of exposure to ionizing radiation during active service.  See also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Analysis

In this case, and for the reasons stated below, the Board finds that the preponderance of the evidence is against the Veteran's appeal and it must be denied.

The Veteran has contended, to include at the January 2009 Board hearing, that he is entitled to service connection for his tonsil cancer because he was exposed to radiation in the Mojave Desert, in May 1964, during an Army training exercise called "Operation Desert Strike" that was residual to all of the atomic testing (over 100 nuclear bombs) that had been conducted at the Nevada Test Site (NTS) between 1951 and 1963.

The evidence of record indicates that the Veteran was attached to the 1st Battalion of the 46th Infantry, 1st Armored Division stationed at Fort Hood, Texas in May 1964.  The evidence of record also indicates that almost all of the personnel at Fort Hood, including the 1st Armored Division, was sent to participate in Operation Desert Strike which took place over two weeks in May 1964 at the Desert Training Center (DTC) in an area roughly filling an oval bounded by Indio and Barstow, California; the area south of Las Vegas, Nevada; and Prescott, Phoenix and Yuma, Arizona.  Las Vegas is situated approximately 65 miles southeast of the NTS.

In view of the foregoing, the Board remanded this case in March 2009, in part, for completion of the required evidentiary development pursuant to 38 C.F.R. 
§ 3.311(a)(2)(iii), which included securing a dosage estimate through any and all appropriate methods, to include reviewing secondary record sources other than the Veteran's service medical and personnel records, such as his unit records.  This development was to include securing any and all evidence which may indicate the Veteran's participation in Operation Desert Strike and the distance between the Nevada Test Site and the pertinent area of Operation Desert Strike.  In particular, the Defense Threat Reduction Agency (DTRA) was requested to provide a radiation dose estimate for the Veteran and, in constructing that dose estimate, DTRA should be requested to consider the Veteran's active service with the 1st Armored Division at Fort Hood in May 1964, and his statements about the circumstances of his service.

In October 2009, the DTRA responded that Operation Desert Strike was a large, "non-nuclear" military operation involving armor and airborne troops; that it was conducted during the spring of 1964 in the Mojave Desert, more than 110 miles south of the NTS; more than 18 months after the conclusion of the last U.S. atmospheric nuclear test conducted at the NTS; and that none of the four detonations resulted in measurable fallout on the Mojave Desert.

Also of record is a May 2010 statement from the U.S. Army Public Health Command, noting that the inquiry had been forwarded in March 2010 to the Veterans Radiation Exposure Investigation Program (VREIP) within the U.S. Army Public Health Command.  This statement noted that they had reviewed the research results provided by the DTRA in October 2009, and that they also researched the possibility of any records of occupational exposure to ionizing radiation for the Veteran or any of the participants of Operation Desert Strike.  Based on the foregoing, it was determined that the Veteran was not occupationally exposed to ionizing radiation while serving as a participant of Operation Desert Strike.

The Board further notes that Operation Desert Strike is not listed among the recognized radiation risk activities identified at 38 C.F.R. § 3.309(d), nor does the record reflect the Veteran otherwise participated in such a recognized activity.

In view of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to ionizing radiation while on active duty.  As such, no further development and/or analysis on this aspect of his appeal is warranted in this case.  

The Board also finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran's squamous cell carcinoma of the right tonsil was otherwise incurred in or the result of his active service.  There is no indication of any such disability in his service treatment records, to include his September 1965 expiration of term of service examination.  Moreover, on a concurrent Report of Medical History, he checked the box to indicate he had not experience tumor, growth, cyst, or cancer.  Further, the first competent medical evidence of this disability appears to have been in 1994, decades after his separation from service.  

The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (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 a disease was incurred in service which resulted in any chronic or persistent disability.).  

In addition, no competent medical opinion is of record which relates the Veteran's squamous cell carcinoma of the right tonsil to his active military service.  Moreover, the Board concludes that no development on this matter is warranted in this case.  Simply put, there is no relevant complaint or clinical finding for a clinician to link this disability to the Veteran's military service.  As detailed above, there is no indication of the disability until decades after service; and the only basis the Veteran has identified is radiation-exposure, for which the Board has determined the preponderance of the evidence is against such a finding.  The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value.  See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history, and unsupported by clinical findings, is not probative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (A medical opinion is inadequate when unsupported by clinical evidence).  

No other basis to establish service connection is demonstrated by the record, to include the other presumptive provisions contained in 38 C.F.R. § 3.309.  Further, nothing in the record indicates it is secondary to the Veteran's hearing loss and/or tinnitus, which are his only service-connected disabilities.  See 38 C.F.R. § 3.310.

For these reasons, the Board has concluded that the preponderance of the evidence is against the Veteran's claim of service connection for squamous cell carcinoma of the right tonsil, to include as due to exposure to ionizing radiation.  As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefits sought on appeal with respect to this claim must be denied.


ORDER

Entitlement to service connection for squamous cell carcinoma of the right tonsil, to include as due to exposure to ionizing radiation, is denied.



____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs