Citation Nr: 1242883 Decision Date: 12/14/12 Archive Date: 12/20/12 DOCKET NO. 10-14 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a chronic respiratory disorder, to include as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Robert A. Embree, Agent WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from August 1958 to November 1960, and from August 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of September 2008. The Veteran appeared at an RO hearing in November 2008. In July 2011, the Veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). The appeal was remanded for further development in November 2011. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation while in service, but the none of the Veteran's chronic respiratory disorders, including pulmonary fibrosis, are among the diseases presumed to result from radiation exposure, and the dosage was too low to indicate actual causation. 2. A chronic respiratory disorder was not present in service or for many years after separation, and is not related to service. CONCLUSION OF LAW A chronic respiratory disorder was not incurred in or aggravated by service, and is not presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303 , 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in October 2007, prior to the initial adjudication of the claim, the RO advised the claimant of the information necessary to substantiate the claim for service connection for a respiratory condition, and of his and VA's respective obligations for obtaining specified different types of evidence. He was advised of various types of lay, medical, and employment evidence that could substantiate the various elements of his service connection claim. He was specifically advised of the requirements for establishing entitlement to service connection based on exposure to ionizing radiation. He was provided with a Radiation Risk Activity Information sheet as a guide for what information to provide. In a letter dated in March 2006, the veteran was provided with information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Board notes that the Veteran was afforded a hearing before the undersigned Veterans Law Judge (not a hearing officer) in July 2011. The VLJ clarified the issue on appeal and asked questions designed to elicit relevant information pertaining to the elements of a service connection claim involving exposure to radiation, and the appeal was subsequently remanded for additional development due to information provided during the hearing. This action supplements VA's compliance with the VCAA and satisfies 38 C.F.R. § 3.103 . With respect to the duty to assist, service medical records have been obtained, as have post-service treatment records identified by the veteran, including VA records. SSA records were obtained. Dosage estimates were obtained from DTRA, and medical opinions were obtained from the VA Environmental Agents Director and from C&P Service, which were based upon consideration of the Veteran's prior medical history, including medical records and service records, and examinations and also describes the disability in sufficient detail for the Board to make an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, VA complied with the development actions required by 38 C.F.R. § 3.311. Thus, the Board also concludes that VA's duty to assist has been satisfied. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be established for 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. To establish service connection, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A chronic respiratory disorder was not shown during service, and in his initial claim, the Veteran said that his respiratory conditions had first been shown in January 2006. VA treatment records dated from 2006 to 2011 show that the Veteran has been evaluated for respiratory conditions, variously diagnosed as COPD, emphysema, asthma, and/or pulmonary fibrosis. VA records include chest X-ray reports, which show that in March 2006, the lungs were clear. In September 2008, there were pleural and parenchymal fibrosis with stigmata of COPD. In September 2009, COPD or emphysema with generalized fibrosis was shown. A CT scan in September 2009 showed COPD without evidence of interstitial fibrosis. His claim for service connection is based on the theory that his respiratory conditions are the result of exposure to ionizing radiation during service. He contends that while he was aboard the USS Duval County, the ship was assigned to the Marshall Islands for participation in post-Operation HARDTACK I operations. The law and regulations provide different methods for establishing service connection for a disability resulting from exposure to ionizing radiation during service. See Davis v. Brown, 10 Vet. App. 209 (1997); Rucker v. Brown, 10 Vet. App. 67 (1997). First, under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), service connection is warranted for certain diseases present in "radiation-exposed veterans." A "radiation-exposed veteran" is defined as a veteran who was involved in a "radiation-risk activity" during military service. Regulations define "radiation-risk activities" to include onsite participation at atmospheric nuclear tests. Id. The term "onsite participation" includes presence at a test site or test staging area to perform official military duties in connection with the completion of projects related to the nuclear test during the six month period following the official operational period of the atmospheric nuclear test. Id. The operational period for Operation HARDTACK I extended from April 28, 1958, to October 31, 1958. Here, the Defense Threat Reduction Agency (DTRA) confirmed, in September 2007, that the Veteran had been involved in post-Operation HARDTACK I activities with the Eniwetok garrison forces in 1959. Service personnel records show his presence in the area within 6 months of Operation HARDTACK I. Therefore, the Veteran meets the criteria for a "radiation-exposed veteran." However, the diseases specific to radiation-exposed veterans do not include any of the respiratory conditions with which the Veteran has been diagnosed. Specifically, cancer of the lung is the only pulmonary condition presumptively associated with radiation exposure, pursuant to this law. Thus, service connection is not warranted on under 38 U.S.C.A. § 1112(c). See Rucker, 10 Vet. App. at 71; 38 C.F.R. § 3.309(d). Under the second method, a "radiogenic disease" may be service-connected if warranted after specified developmental procedures have been conducted under the framework of 38 C.F.R. § 3.311. Pursuant to 38 C.F.R. § 3.311, a "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes all forms of cancer, but does not include any non-cancerous lung conditions. 38 C.F.R. § 3.311(b)(2). The regulation states that if the Veteran has one of the radiogenic diseases, a radiation dose assessment will be obtained and the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the Veteran's disease resulted from radiation exposure during service. Posterior subcapsular cataracts are included as a "radiogenic disease," and the Veteran's grant of service connection for cataracts was based on development initiated pursuant to this regulation. See 38 C.F.R. § 3.311(b)(2)(xvi). If a claim is based on a disease other than one of the listed conditions, VA shall nevertheless consider the claim under this section provided that the claimant 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). In this case, the RO undertook the development set forth in 38 C.F.R. § 3.311. This involves, first, obtaining determinations of exposure and dose; for claims based upon participation atmospheric nuclear testing, dose data will in all cases be requested from the appropriate office of the Department of Defense (DoD). 38 C.F.R. § 3.311(a)(2)(i). In May 2009, the DTRA provided the radiation doses for the Veteran, in connection with his claim for service connection for cataracts. For that disability, the maximum dosages which the Veteran could have received during atmospheric nuclear testing were not more than 18 rem external gamma dose; 0.5 rem external neutron dose; and 28 rem to the lens of the eye (beta plus gamma). Subsequently, in connection with the current claim, a dosage estimate was again requested from DTRA. In November 2010, the DTRA provided a radiation dosage estimate for the Veteran, specifically as to his lungs. He was a confirmed participant of post-Operation HARDTACK I activities, conducted in the Pacific Proving Ground (PPG) in 1958. Concerning the methodology, it was noted that in March 2007, the DTRA's Nuclear Test Personnel Review (NTPR) Program established conservative maximum doses utilizing scientific methods, technical calculations, and actual radiation level measurements from the atmospheric nuclear test detonations. These values were much higher than previous radiation dose estimates, and provided maximum benefit of the doubt to the Veteran in ensuring that reported doses were not less than actual doses. The reported doses were based on worst-case parameters and assumptions, not all of which a Veteran may have encountered, but were intended to adequately encompass any activities performed by the Veteran. Doses which the Veteran could have received during post-Operation HARDTACK I were not more than: * 18 rem external gamma dose; * 0.5 rem external neutron dose; * 1 rem internal committed dose to the lungs (alpha); * 3 rem internal committed dose to the lungs (beta plus gamma). Attached to this dosage estimate was a SCENARIO OF PARTICIPATION AND RADIATION EXPOSURE pertaining to the Veteran, for the diseases of COPD, pulmonary fibrosis and respiratory disorder. This was prepared to assess radiation doses, and included the Veteran's recollections and statements, which he had reviewed, as well as historical information and documentation concerning the radiation environment. All of this information was used to develop a radiation dose assessment for the Veteran. According to the Veteran's statements, he was at Rongelap Atoll in both 1959 and 1960 performing work related to the operation; was anchored off shore and went ashore on the north end of the atoll where much more radiation fell; went ashore for several hours at a time in an LVT P5 tracked vehicle; was ashore approximately 4 hours during his first trip; took a shower and changed clothes upon returning to the ship; felt nauseated the following morning due to this trip ashore, but returned ashore the following day for 3 to 4 hours; was encompassed in a cloud of contaminated sand (about 3,300 cubic feet) thrown up by an LVT vehicle that was picking him up; was exposed to the sand cloud until the driver of the LVT could open the vehicle and let him in; inhaled "3 good breaths" of the sand cloud; was unable to change clothing or shower immediately upon return to the ship, but had to wait until the end of his shift; got sick later that evening, and was ill several times following this episode, including bleeding from the gums and cuticles; lost his hair about 2 weeks after going ashore at Rongelap, which returned a different color; and was exhausted all the time for 4 to 6 months after the episode. Information from operational records and reports included a description of Operation HARDTACK I, which involved a series of 35 atmospheric nuclear weapons tests conducted in the PPG from Apri 28 to October 31, 1958. The USS Duval County did not participate in the operation itself, but was involved in the post-operational activities. To briefly summarize, the ship was in the region from February to May, 1959, including a period of about 2 1/2 weeks during which the ship was in the vicinity of Rongelap, either beached or anchored offshore. The Veteran added, after reviewing the scenario, that his ship again visited Rongelap in 1960, this time on the more fallout-ridden north end. In February 2011, the DTRA stated that the dose estimates remained current. After the dosage assessment was received, the file was referred to the VA Director of Environmental Agents Service (DEAS) for an advisory opinion. According to this April 2011 opinion, the Veteran was born in 1941 and diagnosed with pulmonary fibrosis most recently in 2010. He was a confirmed participant of Operation HARDTACK I, and the DTRA maximum dosage assessments were reported, as listed above. The author of the opinion observed that at high doses, radiation was capable of causing acute and chronic pneumonitis. The dose of whole body radiation required to induce 5 percent incidence in these conditions within five years was 1,750 rems, almost two orders of magnitude above the exposure the Veteran received. Therefore, it was unlikely that he developed pulmonary fibrosis from only 22.5 total rem dose, particularly in view of the fact that he was former smoker for almost 40 years. Smoking was a far more common known causative factor for pulmonary fibrosis than ionizing radiation. The opinion was that it was unlikely that the Veteran's pulmonary fibrosis could be attributed to ionizing radiation exposure while in service. The claim was reviewed in April 2011 by the Director of Compensation and Pension (C&P) Service, who summarized the DEAS opinion, and added that the Veteran had been 17 years old when exposed to ionizing radiation, and that a respiratory condition variously diagnosed as COPD, asthma, and pulmonary fibrosis was diagnosed 50 years after exposure to ionizing radiation. The Veteran's DD Form 214 indicated that he was Caucasian, male, with brown hair, blue eyes, 68 inches in height, and weighing 201 pounds. His post-service employment included law enforcement from which he retired in 1988. A family history of cancer or leukemia was not identified. Based on the DEAS opinion and review of the record in its entirety, the opinion was that there was no reasonable possibility that the Veteran's pulmonary fibrosis was the result of exposure to ionizing radiation during service. The Veteran contends, however, that the DTRA did not properly calculate the dose assessment. VA may also consider a dose estimate from a "credible source" submitted by or on behalf of a Veteran. A dose estimate shall be considered from a "credible source" if prepared by a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology and if based on analysis of the facts and circumstances of the particular claim. 38 C.F.R. § 3.311(a)(3). In written statements as well as in testimony at his Board hearing in July 2011, the Veteran has attempted to explain how he believes that erroneous calculations were made. He believes that DTRA did not include the equivalent weighted dose. He states that DTRA assigned him with 1 rem Alpha and 4 rem Beta. He argues that under U.S. Nuclear Regulatory Commission (NRC) rules, an alpha particle is weighted at 20, and the beta gamma at 1. He said that under the NRC, any internal dose is to be done as an equivalent dose which is constructed by multiplying the number of rem by the weighted factor. He said that the Alpha particle is weighed at 20 and the beta at 1, and so multiplying 4 times 20 gives a dosage of 80 rem. He said that the NRC said that a person is not to receive any more than 50 rem equivalent dose to any single tissue or organ. In support of his assertions, the Veteran submitted copies of selected NRC regulations, as well as an excerpt from a publication, which explains measurement differences between dose, absorbed dose, and dose equivalent. In reviewing these materials, the Board is mystified as to how the Veteran arrived at his formula. The only clue is in the excerpt, where he highlighted a phrase, which, in context, reads as follows: "For example, for equal absorbed doses, alpha particles may be 20 times as damaging as beta particles. In order to account for these variations when describing human health risks from radiation exposure, the quantity called 'dose equivalent' is used." However, the article also stated that the rem described a special unit of dose equivalent; since the rem is a "dose equivalent" measure, it would appear that the variations have already been taken into consideration in arriving at the rem. The NRC regulations do not seem to lend any support to the Veteran's arguments. In any event, the file was returned to the RO, which requested a recalibrated dose estimate from the DTRA, in light of the Veteran's testimony and the NRC regulations. DTRA responded, in December 2011, that upon review of the records, the dose assessment provided in the DTRA letter of November 2010 remained current. DTRA pointed out that participants in atmospheric testing were governed by 38 C.F.R. § 3.311. The VA Director of the Post 9-11 Environmental Health Program wrote, in April 2012, essentially reiterating the prior conclusions. It was also noted that the an interactive radioepidemiological program had not been used to estimate the likelihood of that exposure to radiation was responsible for pulmonary fibrosis because it was not a listed disease. An advisory opinion from the Director of C&P Service in May 2012 also continued to report the same maximum dosages, and essentially the same conclusions, as in the previous letter. Thus, the DTRA did not make any changes in its dose assessment based on the new information. The NRC regulations, which seem to relate to the measurement of ongoing, documented radiation exposure, are not binding on the VA for the purposes of estimating past, unmeasured radiation exposure from atmospheric testing. Moreover, the Veteran is not qualified to provide a dose estimate, as he is not a person "certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology." 38 C.F.R. § 3.311(a)(3). The Veteran contends that pulmonary fibrosis is a radiogenic disease. In support, he submitted a medical opinion from D. Haggerty, D.O., who wrote, in March 2010, that the Veteran suffered from pulmonary fibrosis and attributed the condition to significant radiation exposure while servicing in the military. The Veteran reported exposure on Rongelap and the doctor said that he had researched the incident and that many military personnel were involuntarily subjected to high levels of radiation during nuclear testing in the area. The Veteran described acute hair loss, bleeding of his gums and cuticles, diarrhea, nausea and vomiting shortly after landing on the atoll. His symptom cleared after 1-2 weeks following the incident. These symptoms were certainly consistent with acute radiation exposure and with accounts of other individuals. The Veteran had subsequently developed pulmonary fibrosis. The doctor felt it was very likely the exposure to toxic levels of radiation was the source of his pulmonary fibrosis, noting that radiation exposure was a common cause of pulmonary fibrosis and his acute symptoms at the time indicated he likely receive significant levels of radiation. However, the DTRA, which has more expertise in the area of dose assessment, as well as a more accurate record of the Veteran's in-service opportunities for exposure, considered the Veteran's history, but still found that the dosage was not sufficient to have caused any of the Veteran's pulmonary conditions. The transcript of a prepared statement by R. Alvarez presented in May 2010 refers to radiation exposure of actual residents of Marshall Islands, including Rongelap, who were on the island at the time of a nuclear weapons test in 1954, which deposited radioactive fallout on the island. The inhabitants were not evacuated for 50 hours, and were returned to the island from 1957 to 1985. In contrast, the Veteran was present at or near the island for less than a month, and his presence took place at least 3 to 4 months after the detonation. Therefore, the Veteran's situation is not comparable. The Veteran also included the report of a study which showed that inhaled plutonium may cause lung fibrosis in humans at absorbed lung doses above 10 Sv. However, in the article regarding measurement of exposure, it was noted that one rem was equivalent to 0.01 Sv. Thus, 10 Sv would be equivalent to 1,000 rem, whereas the Veteran was exposed to 22.5 rem per the DTRA estimate. Moreover, these tests involved plutonium workers. An abstract from a case involving idiopathy pulmonary fibrosis in a Christmas Island nuclear test Veteran, who had been in close proximity o 3 atmospheric nuclear bomb blasts during military service in 1957, was noted to be the first reported case of the condition in a nuclear test Veteran. These are not sufficient to establish pulmonary fibrosis as a radiogenic disease, but even if it is considered to be a radiogenic disease, under 38 C.F.R. § 3.311, there still must be competent evidence of a medical nexus, and exposure cannot be presumed by the mere presence of the disease. In this case, the DTRA has reviewed the record with consideration of dose assessment concerning the lungs on 3 occasions. C&P Service has provided an opinion that , and has also reconfirmed that opinion even with the Veteran's allegations as to dose estimates. Moreover, the Board finds the DTRA assessment to be more probative than Dr. Haggerty's conclusion that significant exposure was likely, given the more complete record of the Veteran's circumstances available to DTRA, as well as its expertise in this area. As the requirements of 38 C.F.R. § 3.311 have not been met, service connection cannot be granted under that regulation. In reaching its decision under 38 C.F.R. § 3.311, the Board has taken the factors as listed in 38 C.F.R. § 3.311(e) into consideration, as mandated by the Court in Hilkert v. West, 11 Vet. App. 284 (1998). Specifically, the Board notes the following: the veteran is a male; the claimed in-service radiation exposure occurred when he was from 17 or 18 years of age; the medical evidence indicates no family history of cancer; the veteran's first diagnosis of chronic lung disease was more than 48 years after the exposure, when he was at least 65 years of age, and he has an extensive past smoking history. The third method for establishing service connection based on radiation exposure is with proof of actual, direct causation. See Combee v. Brown, 34 F.3d 1039, 1040 (1995). This is a difficult burden of proof. Id. As discussed above, the Board finds the VA opinions, based on the DTRA dose assessments, as well as the Veteran's exposure history, to be more probative than Dr. Haggerty's opinion. There is no other competent evidence of actual, direct causation. In this regard, the Veteran is not competent to provide a nexus between any in-service radiation exposure and disease developing many years later. The evidence he has submitted is not, for the reasons discussed above, sufficient to outweigh the competent, expert opinions from DTRA and VA. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a chronic respiratory disorder, including due to ionizing radiation, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs