Citation Nr: 1229079 Decision Date: 08/23/12 Archive Date: 08/30/12 DOCKET NO. 97-29 073A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for bilateral macular degeneration, to include as secondary to in-service exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1945 to June 1946. This case comes before the Board of Veterans' Appeal (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In January 2000, the Veteran testified during a personal hearing at the RO, and before a Veterans Law Judge at the RO in July 2000. Transcripts of both hearings are of record. In November 2000, the Board remanded the case for additional development. The case was then returned to the Board for further appellate action. In September 2011, the Veteran was notified that the Veterans Law Judge who conducted the July 2000 hearing is no employed by the Board. He was notified that the law requires the Veterans Law Judge who conducts a hearing to participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2011). Pursuant to 38 C.F.R. § 20.717, the Veteran responded that he wished to testify at another hearing. In March 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence is against finding that bilateral macular degeneration is related to the Veteran's active military service or events therein, to include exposure to non-ionizing radiation. CONCLUSION OF LAW Bilateral macular degeneration was not incurred or aggravated during active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1110 , 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309, 3.311 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2001 and March 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The statement of the case and various supplemental statements of the case provide notification of the evidence necessary to support the Veteran's claim of in-service ionizing radiation exposure. The March 2006 letter informed the Veteran of how disability evaluations and effective dates are assigned. The claim was most recently readjudicated in April 2011. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The claims file contains the Veteran's service treatment records, service personnel records, VA medical records, and private medical records. A radiation dosage assessment was obtained from the Defense Threat Reduction Agency in October 2008. Opinions addressing the etiology of the Veteran's bilateral macular degeneration were obtained from VA physicians and Director of Chief Public Health and Environmental Hazards Officer and the Director of Compensation and Pension Service in May and June 2009, respectively. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159. II. Analysis The Veteran seeks entitlement to service connection for bilateral macular degeneration, to include due to in-service ionizing radiation exposure. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by one of three possible methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, a "radiogenic disease" may be service connected pursuant to 38 C.F.R. § 3.311. Third, direct service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that a disease diagnosed after discharge from service was otherwise incurred during active service, including as a result of exposure to radiation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service records show he is a radiation-exposed veteran by virtue of his service as a member of American occupation forces in the Nagasaki area for a three day period in 1945. 38 C.F.R. § 3.309(d)(3). However, macular degeneration is not subject to presumptive service connection for radiation-exposed veterans under 38 C.F.R. § 3.309(d), nor is macular degeneration a radiogenic disease under 38 C.F.R. § 3.311. Thus, service connection may only be established on a direct basis. In various written statements and during his March 2012 Board hearing, the Veteran reported that he was first diagnosed with macular degeneration at the age of 36, while VA treatment records note a diagnosis as early as 1968-when the Veteran was approximately age 41-over 20 years after his discharge from service. The Veteran asserted that there is adequate scientific and medical evidence to show that his in-service radiation exposure was sufficient to have caused his bilateral macular degeneration. He indicated that he served for three days in Nagasaki and went to the site of the atomic bomb. He also alleged that his eye difficulties began shortly thereafter and were caused by exposure to ionizing radiation. The Veteran's service treatment records do not contain any complaint, finding treatment, or diagnosis with respect to the claimed bilateral macular degeneration. The Veteran in May 1946 was prescribed eyeglasses. Following service, VA ophthalmology records as early as March 1968 discuss the Veteran's eye difficulties. While retinopathy was initially indicated, treating physicians eventually diagnosed bilateral macular degeneration, right worse than left. Continued VA and private treatment records reflect diagnosis of bilateral macular degeneration. An April 1998 report from the Nuclear Test Personnel Review reflects that a scientific dose reconstruction titled "Radiation Dose Reconstruction U.S. Occupation Forces in Hiroshima and Nagasaki, Japan, 1945-1946" had determined that the maximum possible radiation dose that might have been received for any individual who was at either Hiroshima or Nagasaki for the full duration of the American occupation (September 1945 to June 1946) was less than one rem. It was also indicated that the great majority of servicemen assigned to the Hiroshima and Nagasaki occupation forces probably received no radiation exposure whatsoever, and that the highest dose received by anyone was a few tens of millirem. A September 1999 statement from the Veteran's private treating ophthalmologist, Dr. P., reflects that he had treated the Veteran for a number of years for bilateral macular degeneration. He indicated that the Veteran related that he was in the area of the Nagasaki atomic bomb blast and was exposed to radiation there approximately two months after the bomb had detonated. Dr. P. wrote that the causes of macular degeneration are "probably multifactorial" and that that macular degeneration may possibly be related to radiation exposure. The Veteran has also submitted articles on radiation exposure levels in Nagasaki, and a medical journal article reflecting that a study on whether atomic bomb exposure accelerated ocular aging was inconclusive. During the Veteran's January 2000 personal hearing and July 2000 Board hearing, he testified that he was diagnosed with macular degeneration at a very young age of 37. He reported that he was legally blind in the right eye in 1961. He expressed his belief that this disability is related to exposure to radiation from the atomic bomb site in Nagasaki. He referred to studies that suggest that radiation accelerates ocular injury. On VA examination in May 2003, the Veteran reported that he was diagnosed with macular degeneration at the age of 36 and that his vision had gradually decreased since that time. He had undergone laser surgery on two occasions. After physical examination and vision testing, the examiner diagnosed bilateral macular degeneration, right worse than left. He indicated that the Veteran's condition was consistent with age-related macular degeneration. He found no evidence available in the chart or in literature to support that radiation may be responsible for the Veteran's type of macular degeneration. A June 2003 statement from Dr. P. reflect that he had no way of quantifying how much radiation the Veteran was exposed to during service, but he could state that the Veteran developed macular degeneration much earlier in life than one would expect. A December 2003 statement from Dr. P. notes that the Veteran experienced a visual drop in conjunction with the period following his military service. Dr. P. also noted that the Veteran was in the area of detonation of the atomic bomb blast at Nagasaki when radiation levels were high. He opined that, given the early age of onset of macular degeneration, there was sufficient evidence to point to radiation as the cause. On VA QTC examination in February 2004, the Veteran claimed that he was exposed to radiation in Nagasaki. He stated that he started noticing decreased vision as early as 1946 while he was still in service. The examiner indicated that he reviewed the Veteran's claims file, including the statements from Dr. P. After an ophthalmic examination, the examiner diagnosed dry macular degeneration, right eye greater than left eye. The examiner noted that, in reading medical records concerning the relationship of the radiation exposure to macular degeneration, there is an association with radiation and macular disease. However, he found it hard to know whether the Veteran's exposure to radiation was significant enough to cause radiation maculopathy. He noted that the Veteran denied a family history of macular degeneration. In an April 2004 addendum opinion, the examiner noted that the Veteran had claimed to be in perfect health prior to service and there was no history of macular degeneration. In addition, there were no records of trauma to the eye or head or use of any ocular medication. There was, however, a document showing an optometrist consult in May 1946 which indicated some form of error in refraction. The examiner indicated that he reviewed studies on radiation and its effects on the eye. He noted that it was clear that the Veteran was exposed to ionizing radiation in service. He opined that it is certainly within the realm of possibility that there was permanent damage, specifically to the fine microvas uclar of the retina, leading to macular degeneration. He noted that a study of 1,233 atomic bomb survivors noted a ratio of 5:1 morbidity of ocular disease between atomic bomb survivors and the general Japanese public of the same age group. Therefore, after a review of medical records and literature, and current physical examination, the examiner found that it is at least as likely as not that the Veteran's bilateral macular degeneration was caused by exposure to ionizing radiation in service. A March 2007 statement from Dr. P. reflects that he had reviewed the Veteran's medical records and identified that he had the onset of macular degeneration early in life. He also noted that the Veteran was exposed to radiation in Nagasaki, and there were would be high levels of radiation associated with that event. He concluded that the Veteran's macular degeneration is at least as likely as not the result of the radiation exposure associated with in-service exposure to radiation. An October 2008 dose estimate report from the Defense Threat Reduction Agency reflects that the Veteran was present in the Nagasaki area from November 25 to 28, 1945. The Veteran reported that he landed in Nagasaki aboard LST 482 about two months following the use of an atomic bomb at Nagasaki. He stated that he and some shipmates went to "ground zero" and remained there for quite awhile observing the destruction. He reported that he walked on the hot black ground and stood in guard duty in front of the open bow doors every day while he was there. The statement from the Defense Threat Reduction Agency reflects that the Veteran's reports and comments regarding his exposure were considered in developing his dose estimate. The dose reconstruction applied to the appellant's case originated from the report, "Radiation Dose Reconstruction U.S. Occupation Forces in Hiroshima and Nagasaki, Japan, 1945-1946." The dose reconstruction was based on worst case assumptions for the Veteran's scenario. Total eye (retina) dose beta plus gamma was an estimated 0.014 rem, which included the contribution from the external gamma dose component. Upper bound total eye (retina) dose beta plus case was an estimated 0.042 rem. In February 2009, the VA Director of Compensation and Pension Service wrote the Under Secretary for Health for review of the Veteran's claim under 38 C.F.R. § 3.311. He highlighted all the pertinent information, including radiation dose estimates, treatment records reflecting treatment of macular degeneration as early as March 1968, the opinions of private ophthalmologist Dr. P. in support of the Veteran's claims, as well as the positive opinion of the April 2004 VA examiner. In May 2009, the physician serving as VA Chief Public Health and Environmental Hazards Officer responded to the Director of Compensation and Pension Service's review request. Citing to relevant medical studies on the effects of ionizing radiation, he noted that radiation retinopathy occurs at a minimum dose of 15 Gray and most is not seen in doses below 30 to 35 Gray. The outside limit of latency for development of retinopathy after radiation exposure is approximately 7 years. He noted that the Veteran's records indicate that other than mild defective visual acuity, for which he was prescribed glasses while in service, the Veteran's retinal problems began acutely in 1968 with the appearance of a scotoma in the left eye. The physician pointed out that this is well beyond the latency period for retinal problems due to radiation exposure. In addition, the Veteran was estimated to have received a dose of radiation to the eye that was only 3/10,000th of the minimum dose at which retinal damage is known to occur. Therefore, he concluded that it was unlikely that the Veteran's macular degeneration is due to exposure to ionizing radiation. The Director of Compensation and Pension Services then issued an advisory opinion in June 2009. Following of review of the evidence in its entirety and the medical opinion of the VA Chief Public Health and Environmental Hazards Officer, he opined that there is no reasonable possibility that the Veteran's macular degeneration resulted from exposure to radiation in service. As noted above, the record does not reflect-nor does the Veteran contend-a diagnosis of macular degeneration in service. While the medical evidence of record clearly reflects current diagnosis of macular degeneration dating back to 1968, it is conflicting as to whether the disability is related to in-service exposure to ionizing radiation. While private physician Dr. P. and the April 2004 VA examiner opined that the Veteran's bilateral macular degeneration is related to ionizing radiation exposure, the 2003 VA examiner and Chief Public Health and Environmental Hazards Officer found it less likely than not that such a relationship exists. On review, some of the opinions of Dr. P. are phrased in speculative terms, such as "may have possibly." The conditional nature of these statements greatly diminishes the probative value of Dr. P's comments. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not," and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992) ("may or may not" language by physician is too speculative). As for the remaining positive nexus opinions, there is no indication in these opinions that the examiners considered the Veteran's dose estimates, or relevant studies on the relationship between macular degeneration and radiation exposure that are similar to the Veteran's exposure scenario. Indeed, at the times these examiners proffered their opinions, the Defense Threat Reduction Agency dose reconstruction report was not of record. Neither examiner provided an estimate of the Veteran's exposure or point to any study regarding the expected amount of radiation levels in Nagasaki in November 1945. Dr. P. merely concluded that, because of the early onset of macular degeneration, the disability was likely due to radiation exposure. He did not provide any specific rationale for this conclusion reached. In addition, the 2004 VA examiner referred to general articles on radiation exposure and incidences of macular degeneration, to include a study of the Japanese people living in Nagasaki, not soldiers who spent a three day visit as is the case here. Hence, they are not specific to the Veteran and his short term exposure scenario. Accordingly, these opinions are of limited probative value. On the other hand, the May 2009 opinion from the Chief Public Health and Environmental Hazards Officer and subsequent advisory opinion from the Director of Compensation and Pension Service focus specifically on the facts of the Veteran's case. These opinions cite the report on which its dose reconstruction estimate was based and the worst case assumptions based on the Veteran's self reported scenario were used. These memoranda include a rationale through reference to relevant studies and the application of findings from that study applied to the facts of the Veteran's case, and provide definitive conclusions. The Board has also considered the medical literature that has been submitted but finds that it lacks probative value in the consideration of the Veteran's particular claim. These articles do not even purport to address the specific facts of the individual case under consideration. Wallin v. West, 11 Vet. App. 509, 514 (1998) (treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim,' but, 'standing alone,' must include 'generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion'). With respect to any direct assertion by Veteran and/or his representative that macular degeneration is related to in-service exposure to ionizing radiation, lay assertions alone do not provide a basis for allowance of the claim. The Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay witnesses may, in some circumstances, address questions of etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, determining the etiology of macular degeneration is not within the province of lay persons, but belongs only to trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render an opinion on etiology. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Borwn, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Based on the above, the preponderance of the most competent and probative evidence in the case is found to be against the claim. The appeal is denied. While the preponderance of the evidence is against the claim at this time, the Veteran is not precluded from obtaining and submitting evidence demonstrating that the dose estimate discussed above is incorrect or that the Defense Threat Reduction Agency's dose estimate is significant enough to be responsible for the claimed bilateral macular degeneration. If and when he does so, the appellant's claim would be readjudicated based on the evidence then available. In reaching this decision the Board considered the doctrine of reasonable doubt. As a preponderance of the evidence is against the claim, however, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hence, the claim is denied. ORDER Entitlement to service connection for bilateral macular degeneration, to include as secondary to in-service exposure to ionizing radiation is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs