Citation Nr: 1304574 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 05-01 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for macular degeneration claimed as due to ionizing radiation. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 1948 to June 1952 and from September 1952 to June 1954. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a rating decision of the VA Regional Office (RO) in Waco, Texas. The Veteran was afforded hearings at the RO in April 2004 and in October 2006 before the undersigned Veterans Law Judge sitting at Waco, Texas. The transcripts are of record. In a March 2007 decision, the Board denied service connection for macular degeneration, claimed as due to exposure to ionizing radiation. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2008 memorandum decision, the Court vacated the Board's decision and remanded the matter to the Board for readjudication. The case was remanded for further development in February 2010 and January 2011 and has since been returned to the Board for disposition. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The veteran had in-service exposure to ionizing radiation. 2. Macular degeneration was first clinically demonstrated many years after discharge from service. 3. Macular degeneration is not recognized by the VA as having a positive association with radiation exposure or as a radiogenic disease. 4. The more competent evidence of record finds that macular degeneration is age related and is not related to service or to exposure to ionizing radiation therein. CONCLUSION OF LAW Macular degeneration, claimed as due to ionizing radiation exposure, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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). This 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). The notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 486 (2006). Here, adequate notice was sent to the appellant by letter dated in May 2003, prior to the initial unfavorable decision on the claim, that informed him of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. Notification that included information pertaining to a disability rating and an effective date for the award has also been sent to the appellant. In this case, however, the claim is denied. Therefore, no rating or effective date will be assigned. The Board finds that all necessary development has been accomplished to the extent possible and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet.App. 384 (1993). Private clinical reports in support of the claim have been carefully considered. The Veteran presented testimony on personal hearings on appeal in 2004 and 2006. The case was remanded for further development on two occasions. The appellant was afforded VA examinations in 2010 and 2012, to include medical opinions. The VA examinations taken as a whole are determined to be adequate for adjudication purposes. The appellant's statements and testimony in the record and the whole of the evidence have been carefully considered. The record does not otherwise indicate any additional evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board is satisfied that VA has complied with the duty-to-assist-requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. No further notice or assistance 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); see also Quartuccio v. Principi, 16 Vet.App. 183 (2002). As such, the issue of entitlement to service connection for macular degeneration is ready to be considered on the merits. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2012). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2012). Certain specified disabilities that become manifest in a "radiation-exposed veteran" shall be service connected. See 38 U.S.C.A. § 1112(c)(1)(2) (West 2002 & Supp. 2012), 38 C.F.R. § 3.309(d)(1)(2) (2012). The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." See 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" means on-site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; or a certain presence on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, or certain service on Amchitka Island, Alaska during certain underground nuclear tests. 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). On-site participation includes presence at a test site during an official operational period of an atmospheric nuclear test, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. 38 C.F.R. § 3.309(d)(3). The United States Court of Appeals for Veterans Claims (Court) has held that service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Hilbert v. West, 11 Vet.App. 284, 289 (1998); McGuire v. West, 11 Vet.App. 274, 277 (1998); Hardin v. West, 11 Vet.App. 74, 77 (1998); Rucker v. Brown, 10 Vet.App. 67. 71 (1997); Ramey v. Brown, 9 Vet.App. 40, 44 (1996), aff'd sub nom Ramey v. Gober, 102 F.3d 1239 (Fed. Cir. 1997). Firstly, direct service connection may be established under 38 C.F.R. § 3.303(a) by showing that the disease began during or was aggravated by service, a task "which includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Secondly, certain diseases shown to a compensable degree within a year of separation from service are presumed to have been incurred in or aggravated by service. As to radiation-exposed veterans, certain diseases may be presumptively service connected under 38 U.S.C.A. § 1112(c) if participation in an in-service radiation-risk activity is shown. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Thirdly, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages found in 38 C.F.R. § 3.311 if the condition at issue is a "radiogenic disease," and other criteria specified by regulation are met, such as an evidentiary showing of exposure to ionizing radiation. See 38 C.F.R. § 3.311(b)(4). Under 38 C.F.R. § 3.311, the term 'radiogenic disease' means a disease that may be induced by ionizing radiation and shall include the following: all forms of leukemia except chronic lymphatic (lymphocytic leukemia), thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, stomach cancer, esophageal cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, rectal cancer, lymphomas other than Hodgkin's disease, prostate cancer and any other cancer. Factual Background Service treatment records dated in October 1948 reflect that the Veteran was seen after the left eyelid became swollen. He was administered eye drops. In April 1953, he complained of left upper eyelid pain after driving three to four hours. Bactrim and dark glasses were prescribed. On further follow-up in April 1953, the appellant claimed that he had a partial 'ptosis' of the left upper lid and that after driving for a while, it became numb and almost closed. Physical examination was negative. A diagnosis of probable neuritis was recorded. The left eyelid was noted to be normal in May 1953. On examination in June 1954 for separation from service, distant vision was 20/20 in each eye. The eyes were evaluated as normal and no defects were recorded. A claim for disabilities that included "damage to vision" was received in April 2003. Received in support of the claim was a clinical report from C. A. Long, M.D., stating that he had been following the Veteran for macular degeneration. It was noted that the appellant reported having a problems with his vision since 1980, and indicated that he had observed an atomic explosion in the military many years before. The physician stated that it was possible that a review of medical records from his time in service might reveal an alteration in his vision following the observed event and if so, this could be responsible for the early development of macular degeneration. A June 1993 unclassified report from the Defense Nuclear Agency (DNA) indicated that the Veteran had responded to a request for information on Department of Defense personnel who participated in U. S. atmospheric nuclear weapons tests conducted from 1945 to 1962. It was noted that a review of the records showed that he had been identified as a nuclear test participant. The Veteran presented testimony in April 2004 to the effect that he did not know anything about a relationship between atomic testing and macular degeneration until about three years before when he asked Dr. Long whether exposure to atomic testing could explain the disorder. He said the doctor replied that such a relationship was possible. In April 2004, the RO received articles concerning U.S. Atomic Veterans and Operation Greenhouse, Operation Buster-Jangle, and Operation Ivy. In his January 2005 substantive appeal, the Veteran related that it was a known fact that exposure to radiation from the type of tests he witnessed could cause eye damage, including macular degeneration. He stated that people witnessing the blasts were required to wear sunglasses or turn away from the blast. Received from the Veteran in September 2005 were articles concerning the health effects of ionizing radiation. He claimed that they supported his contentions that exposure could cause eye problems. A report was received in September 2005 from the indicating that Veteran participated in the Operation Ranger and Operation Greenhouse Test Series from 1950 to 1952 at the Nevada test site and at Eniwetok while assigned to the 4th Transportation Truck Company. It was reported that he was exposed to atmospheric testing as he witnessed blasts in trenches, and drove vehicles into ground zero. Reconstructed external doses of 0.044 rem gamma radiation at Operation Buster-Jangle on three occasions between October 30, 1951 and November 2, 1951, and 3.309 rem gamma between May and June 1951 for Operation Greenhouse were reported. Dr. C. Long wrote in December 2005 that the Veteran was considered legally blind because of his reduced visual field and visual acuity, and that this was considered permanent and not treatable by medical or surgical means. The Veteran testified in October 2006 that he witnessed three or four atomic blasts, probably within a three-month period while stationed in Nevada and perhaps four bombs while stationed at Eniwetok. He stated that in both venues, he was about three or four miles from the actual blast site with his back turned to the explosion for about three minutes until they drove in to assess damage. He said he remembered that his dosimeter badge turned blue on at least one occasion. The Veteran related that he did not wear glasses while in the service and that his vision was probably pretty good before and during service. He said that he was not prescribed eyeglasses until the 1960s and was not treated for macular degeneration until four to six years before the hearing. Pursuant to Board remand, the Veteran was afforded VA eye examinations in April 2010 and January 2012. The examiner indicated that the claims folder was reviewed. It was noted that an opinion was requested as to whether the appellant's macular degeneration was caused by his exposure to ionizing radiation during service. On examinations and ensuing addendums in July and August 2012, the examiner opined that the Veteran had extensive senile macular degeneration due to advancing age. It was noted that he had worked in high places as a roofer for many years prior to being diagnosed with macular degeneration and that it was extremely unlikely that he had any significant changes in his retina during his working years as he would have certainly been a danger to himself and others working on roofs. The examiner concluded that "I cannot speculate as to the previous examiner's opinion but I can say that within the limits of my expertise I believe this patient has senile macular degeneration due to arteriosclerotic changes in his retina." Legal Analysis The Veteran's service treatment records reflect that he sought treatment for eye complaints on several occasions during active duty. However, there is no indication in the service treatment records that he developed chronic eye disease or that such symptoms were emblematic of macular degeneration. The eyes were evaluated as normal on discharge from active duty in 1979. As such, macular degeneration was not shown in service. The post service record does not indicate any further complaints or a disorder affecting eyes until more than three decades after discharge from service. The Board points out that evidence of a prolonged period without medical complaint and the amount of time that has elapsed since military service can be considered as evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends that macular degeneration is etiologically related to exposure to ionizing radiation during active duty. VA regulations provide for presumptive service connection for certain diseases based on exposure to ionizing radiation for those veterans involved in nuclear testing activities as the Veteran is shown to have been. See 38 C.F.R. § 3.309(d). The Board points out, however, that although the appellant meets the criteria for a "radiation-exposed veteran", the disability for which service connection is sought is not among the "radiogenic diseases" as recognized by VA under either 38 U.S.C.A. § 1112(c)(2) or 38 C.F.R. § 3.309(d)(2) as result of such exposure. Accordingly, service connection for macular degeneration may not be presumed under 38 U.S.C.A. § 1112(c)(2) or 38 C.F.R. § 3.309(d)(2). Additionally, while the provisions of 38 C.F.R. § 3.311 may be applied if evidence is presented that the claimed disability is a radiogenic disease even though it is not specifically listed in 38 C.F.R. § 3.311, (see § 3.311(b)(4)), as suggested by Dr. Long in April 2003, no substantial evidence has been presented to suggest that the Veteran has a radiogenic disease in this respect. Dr. Long is specifically shown to have conditioned his positive opinion on a review of medical records from service showing alteration in vision following atomic testing which is not demonstrated in this case. The Veteran's vision was noted to be 20/20 at service discharge. Moreover, when examined by VA in 2010 and 2012, the examiner referred to the Veteran's many years as a roofer and working in high places and found that it was extremely unlikely that he had any significant changes in his retina during his working years. The examiner was also unequivocal in his determination that macular degeneration was age related and due to arteriosclerotic changes in the retina. Reasons for the negative opinion are recited above. The Veteran is competent to report that he has had deterioration of vision since service and when those symptoms began. A layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet.App. 465, 470 (1994). As well, his private physician, Dr. Long, has suggested that macular degeneration may be related to ionizing radiation exposure during active duty. The Board thus finds that there is both competent lay and medical evidence in support of the assertion that macular degeneration is related service. However, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet.App. 429, 433 (1995). Greater weight may be given to one physician's opinion than another depending on factors such as the degree of expertise, reasoning employed by the physician and whether (and the extent to which) he or she reviews prior clinical records and other evidence. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). In this regard, the VA compensation and pension examination reports in 2010 and 2012 are determined to be more persuasive and probative. The Board observes that contrary to Dr. Long, the VA examiner reviewed the claims folder containing relevant information and provided a comprehensive history, as well as more informed and reasoned articulation as to why current macular degeneration is not related to service. The VA examiner delineated specific rationale in this regard, to include factors that may have been implicated in the development of macular degeneration in the Veteran's case, primarily aging. In contrast, the Board finds that the private examiner's report and opinion suggesting that macular degeneration might be related to atomic testing during service are less probative. In this regard, it is shown that Dr. Long framed his opinion equivocally and conditionally by stating that if records from service showed deterioration of vision...then the observed events might be responsible for early macular degeneration. Therefore, in addition to not having the Veteran's prior clinical records at his disposal, the private opinion is significantly more speculative and of diminished probative value. It is thus found that the assessment of the VA medical professional, who considered the Veteran's lay assertions, but found that macular degeneration is not related to service or to any event therein is more probative than the Veteran lay opinion or Dr. Long's opinion. Under the circumstances, the Board concludes that the more probative evidence supports a finding that the Veteran's macular degeneration is not related to service or to any incident therein. The Board finds that the preponderance of the evidence is against the claim and service connection for macular degeneration must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 54-56 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for macular degeneration, claimed as due to radiation exposure is denied. _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans Appeals Department of Veterans Affairs