Citation Nr: 1306144 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-05 462 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for Wegener's granulomatosis. 2. Whether the reduction of the rating for service connected bladder cancer residuals was proper. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from September 1955 to September 1958, and from December 1958 to December 1975. This appeal comes to the Board of Veterans' Appeals (Board) from October 2007 and January 2009 rating decisions. In February 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Please note 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. At his February 2012 Board hearing, prior to the promulgation of a decision, the Veteran withdrew his claim regarding the reduction of the rating that was assigned for his service connected bladder cancer residuals. 2. The weight of the evidence is against a finding that the Veteran's Wegener's granulomatosis either began during or was otherwise caused by his military service, to include any exposures therein. 3. The weight of the evidence is against a finding that the Veteran's Wegener's granulomatosis is either secondary to or aggravated by his service connected bladder cancer. CONCLUSIONS OF LAW 1. The Veteran has withdrawn his appeal with respect to the claim of reduction of the rating that was assigned for his service connected bladder cancer residuals; thus the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 2. Criteria for service connection for Wegener's granulomatosis have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal At his February 2012 hearing, the Veteran testified that he wished to withdraw his appeal of whether the reduction of the rating for service connected bladder cancer residuals was proper. The hearing transcript is of record. A substantive appeal may be withdrawn in writing or on the record at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. As the Veteran has withdrawn his appeal with respect to whether the reduction of the rating for service connected bladder cancer residuals was proper, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction and the issue of whether the reduction of the rating for service connected bladder cancer residuals was proper is dismissed. II. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. The Veteran is seeking service connection for his currently diagnosed Wegener's granulomatosis, which he believes was the result of exposure to radiation while in service. He acknowledged at a hearing before the Board that he was first diagnosed with Wegener's granulomatosis in approximately July 1999, more than two decades after separating from service, but he believes that he began experiencing symptoms of the disease, such as sinus, esophagus and stomach problems, many years before the condition was actually diagnosed. His wife testified that every morning, dating back to service, he would experience coughing on account of sinus drainage. The Veteran has also provided evidence confirming his participation in the testing of a nuclear/atomic weapon during Operation Dominic, and he is presumed to have been exposed to herbicides by virtue of his documented service in the Republic of Vietnam. As such, service connection will be considered under multiple theories of entitlement. In February 2007, a VA nephrologist wrote a letter stating that the Veteran had a history of exposure to agents while on active duty which had been associated with Wegener's granulomatosis. However, as will be discussed, VA acknowledges the Veteran's participation in a radiation risk activity, as well as his presumptive exposure to herbicides, and the relevant question is therefore not whether the Veteran had exposure, but rather whether such exposure caused his Wegener's granulomatosis. Service connection based upon exposure to radiation can be awarded three ways: 38 C.F.R. § 3.309(d), 38 C.F.R. § 3.311, or on the basis of direct, or in certain cases presumptive, service connection. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Under 38 C.F.R. § 3.309(d)(3), a "radiation-exposed veteran" is defined as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii). If a veteran is found to meet the definition of a radiation-exposed veteran, 38 C.F.R. § 3.309(d)(2) provides an exclusive list of diseases which are considered presumptively caused by radiation exposure. As an initial point, the evidence indisputably establishes that the Veteran participated in Operation Dominic as contemplated by 38 C.F.R. § 3.309, and he is therefore found to have been exposed to radiation while in service. The Board has also carefully reviewed the Veteran's statements, including his assertions that he was exposed to plutonium based radiation during the testing. The Veteran has written statements and has testified that he was exposed to plutonium while participating in Operation Dominic when a missile failed to launch properly and instead burned on the launch pad. The Veteran reported being located less than 1500 feet from the site of the burning warhead. However, while it is presumed that the Veteran had radiation exposure, Wegener's granulomatosis is not a disease which has been presumptively related to radiation exposure. See 38 C.F.R. § 3.309(d)(2). When, as here, a veteran does not have a disease that is presumptively linked to radiation exposure, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation, calling for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. A "radiogenic disease" is defined in 38 C.F.R. § 3.311 as a disease that may be induced by ionizing radiation, and this section specifically includes a non-exclusive list of diseases which are considered to be radiogenic diseases. Wegener's granulomatosis is not on this list. The Board recognizes that this list is not exclusive, and that additional diseases may be caused by radiation exposure. For this reason, following the Veteran's Board hearing, the Board obtained an expert medical opinion as to whether Wegener's granulomatosis should be considered to be a radiogenic disease. Unfortunately, in September 2012, a VA doctor, after reviewing the medical literature on the subject, including the studies submitted by the Veteran, concluded that the Veteran's Wegener's granulomatosis was not the result of his confirmed radiation exposure during service. In so doing, the doctor implicitly concluded that the medical literature did not support the conclusion that Wegener's granulomatosis was a radiogenic disease. As is discussed below, the doctor specifically explained the specific problems with the medical literature that had been submitted by the Veteran. A review of the claims file similarly fails to uncover any competent evidence establishing Wegener's granulomatosis as a radiogenic disease. The Board acknowledges the doctor's assertion that any association between Wegener's granulomatosis and radiation exposure would be speculative in nature, and notes that in general VA is cautious about relying on opinions which are speculative in nature. However, a medical examination is not rendered inadequate merely because the medical examiner states he or she cannot reach a conclusion without resort to speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Rather, the phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Here, the medical professional reviewed the medical literature on the subject, but found that it did not at that time support the conclusion that it was at least as likely as not (50 percent or greater) that the Veteran's Wegener's granulomatosis either began during or was otherwise caused by any radiation exposure during his military service. This opinion is found to be highly probative and entitled to great weight. The doctor reviewed the evidence of record and the available medical literature in providing his opinion. The doctor also provided a complete rationale for his conclusions. Moreover, his conclusions have not been undermined by any competent evidence. The Board has closely reviewed the Veteran's statements and the considerable medical and anecdotal evidence which he had submitted. As a lay person, the Veteran, is considered competent to report what comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). To this end, the Board has carefully reviewed his written statements and his oral testimony. In fact, his testimony was quite helpful in helping to establish how he was exposed to radiation, including from plutonium, during Operation Dominic. The statements of the Veteran and his wife were also considered in describing symptoms the Veteran experienced through the years. For example, the wife stated that she recalled the Veteran complaining about sinus inflammation and drainage while in service. However, while the Veteran believes that this Wegener's granulomatosis was caused by in-service radiation exposure, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his Wegener's granulomatosis. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. As noted, the Veteran has also submitted considerable literature about Wegener's granulomatosis and about radiation. For example, the Veteran submitted a human health fact sheet on plutonium which explained what plutonium was, where it came from, and how it was/is used. The sheet also discussed the release of plutonium into the atmosphere, and what happens to it in the body. With regard to health effects, the sheet reported that laboratory studies with animals had shown that exposure to high levels of plutonium could cause decreased life spans, diseases of the respiratory tract, and cancer. However, it was cautioned that the observations had entirely been drawn from animal testing and had not been corroborated by epidemiological investigations in humans exposed to lower levels of plutonium. The Veteran also submitted a fact sheet on Wegener's granulomatosis which explained the frequency of the disease, the fact that there is no known cause of it, that it was an uncommon disease which could occur at any age, but most often in the 4th or 5th decade of life, and that it predominantly impacted Caucasians. It also noted the symptoms of Wegener's granulomatosis could be either indolent (slow moving with few symptoms) or have a rapid and severe onset. An article from the Vasculitis Foundation publication from 2006 described preliminary results from an investigation of heavy metal exposure in people with Wegener's granulomatosis. The article noted that previous studies had suggested several environment exposures which might be related to Wegener's granulomatosis. It was noted that laboratory testing was performed on 38 Wegener's granulomatosis patients after they obtained a whole blood heavy metal screening. The results were then compared with a subject self-report questionnaire estimating exposure. The possible exposures included cobalt from nuclear facilities and from nuclear wastes. However, the investigation concluded that the questionnaire results did not correlate with the blood heavy metal analysis, as only 26 percent or so of the Wegener's granulomatosis subjects in the study had abnormal heavy metal levels. Several articles were also submitted. An essay on plutonium was submitted from the Radiation Information Networks at Idaho State University which essentially sought to prove that plutonium exposure was not as hazardous as many thought, although the essay acknowledged that there might be additional cancers caused by specific types of exposure. A New York Times article was submitted about several scientists who had been lethally exposed to radiation while working in preparation for a nuclear test in 1946. Another article provided details of public meetings dealing with the cleanup on Johnston Atoll, where the Veteran was stationed when he was presumably exposed to plutonium. Another article described Operation Dominic itself, including the unfortunate release of plutonium during the testing. A website description of carbon tetrachloride was also provided. The United States Court of Appeals for Veterans Claims (Court) has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses 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. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). However, in the present case, the literature submitted by the Veteran is not accompanied by the opinion of any medical expert (linking any clinical findings to the Veteran's situation). Nevertheless, even though there was not a medical opinion of record linking the studies submitted by the Veteran to his condition, the Board did not, and has not, dismissed the studies categorically. Instead, finding that the submitted studies allowed for the possibility of a correlation between the Veteran's exposures in service and his Wegener's granulomatosis, the Board sought an expert medical opinion, requesting that the medical professional providing the opinion specifically review and comment on the studies. As requested, the VA doctor reviewed the material the Veteran had submitted, but ultimately found that the treatise evidence did not force the conclusion that it was at least as likely as not that radiation exposure caused the Veteran's Wegener's granulomatosis. With regard to the treatise evidence, the doctor noted that some of the studies had suggested the possibility of a risk of Wegener's granulomatosis being associated with certain environment exposures, but he also noted that there was wide concern about the validity of such studies. He also pointed out that even in the studies presented by the Veteran, the authors recognized a need for larger and better studies before strong conclusions could be made. Moreover, the doctor noted that problems with the studies had repeatedly been raised, including concerns about a lack of reliable measures of exposure, concerns for recall bias and a lack of appropriate control groups. As such, the Board concludes that the treatise evidence submitted by the Veteran is insufficient to establish the required nexus. Additionally, while a VA nephrologist previously suggested that the Veteran had a history of exposure to agents while on active duty which had been associated with Wegener's granulomatosis, this opinion stopped well short of concluding that it was at least as likely as not that the Veteran's Wegener's granulomatosis was the result of any radiation or herbicide exposure during his military service. To this end, exposure alone does not establish causation. Moreover, the Board obtained a medical opinion to specifically investigate this suggestion, but as discussed above, the VA doctor did not find that the evidence supported the conclusion that it was at least as likely as not that the Veteran's radiation exposure caused his Wegener's granulomatosis. As noted, in addition to being exposed to radiation in service, the Veteran is also presumed to have been exposed to herbicides by virtue of his service in the Republic of Vietnam; and service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree anytime after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. However, Wegener's granulomatosis is not among the list of diseases which have been presumptively linked to herbicide exposure under 38 C.F.R. § 3.309(e). As such, the Veteran's Wegener's granulomatosis is not presumptively linked to his presumed herbicide exposure. Moreover, the VA doctor was asked to consider the impact of the Veteran's presumed herbicide exposure on his subsequent development of Wegener's granulomatosis, but the doctor opined in September 2012 that it was less likely than not that the current disease was the result of herbicide exposure, noting that the medical literature and his experience did not support such a link. No competent evidence has been offered to refute this conclusion. Furthermore, to the extent the Veteran believes his Wegener's granulomatosis was caused by herbicide exposure, as with radiation exposure, he lacks the medical training and expertise to provide a complex medical opinion linking his Wegener's granulomatosis to herbicide exposure. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, service connection for Wegener's granulomatosis is not warranted based on the Veteran's presumed in-service herbicide exposure. Nevertheless, even when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must nevertheless be reviewed to determine whether service connection can be established on a another basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To this end, the Veteran contends that he has experienced sinus problems since his period of active military service, which he believes were the initial manifestations of his Wegner's granulomatosis. He recalled having a lot of bad colds in service and maintained that he experienced sinus problems from service until later diagnosed with Wegener's disease in 1999. He further reported that he did not continue to get treatment for his sinus problems for many years after retiring from service. The Veteran's wife testified at a hearing before the Board that she frequently recalled him complaining about sinus-related symptoms during his period of active service. The Board acknowledges that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran and his spouse appeared to be credible historians at his hearing. Additionally, service treatment records confirm that the Veteran was treated for colds or cold-like symptoms on several occasions during his period of active service. For example, in February 1962, he presented with complaint of sore throat and running nose for the past week. His ears were negative and nose demonstrated post nasal drip. The noted impression was common cold. In February 1972, the Veteran presented with complaint of having had his fourth cold since January. His cold at that time had reportedly begun the day before and he had stuffy nose and coughing. The noted impression was upper respiratory infection (URI). In January 1973, the Veteran underwent x-ray of the chest due to productive cough. As such, it would appear that the service treatment records support the Veteran's assertion that he did experience colds during service. However, while the Veteran is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of Wegener's granulomatosis. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus between his Wegener's granulomatosis and the symptomatology he experienced during his military service. To address this question, the Board obtained an expert medical opinion as to whether it was at least as likely as not (50 percent or greater) that the Veteran's Wegener's granulomatosis either began during or was otherwise caused by his military service. In September 2012, the VA doctor wrote that he felt that such a relationship was unlikely. He explained that Wegener's granulomatosis is a severe condition that was typically fatal prior to the development of effective treatments. As such, the doctor concluded that it seemed unlikely that the Veteran's upper respiratory symptoms present in the 1960s and 1970s would be attributable to an undiagnosed Wegener's granulomatosis. The doctor further added that while the diagnosis of Wegener's granulomatosis was generally delayed, he had a hard time imagining that undiagnosed Wegener's granulomatosis would exist in any patient for decades unless it was of a limited form. While this opinion allowed the possibility that the Veteran could have had a limited form of Wegener's granulomatosis for years, the doctor found that such a possibility was less likely. This opinion was well-reasoned and issued with a complete understanding of the Veteran's medical history and his contentions. As such, the Board finds that it highly probative and entitled to great weight. Moreover, this opinion has not been refuted by any competent evidence. The Board has also considered whether the Veteran's Wegener's granulomatosis was caused or aggravated by his malignant bladder neoplasm. However, the immunologist who provided the expert medical opinion in September 2012 asserted that he felt such a relationship to be unlikely; explaining that from the literature and his knowledge, he was unable to find any causative role for bladder cancer in the development of Wegener's granulomatosis. The doctor allowed that the treatment of Wegener's granulomatosis (specifically cytoxan) could predispose patients to bladder cancer over time, but he felt that cytoxan would be unlikely to cause bladder cancer in less than a year as was the case with the Veteran. As noted, the opinion was well supported and it is unchallenged by any competent evidence. The Board has carefully reviewed this case, and is sympathetic to the Veteran's contentions. However, the weight of the medical evidence simply tilts against a conclusion that the Veteran's Wegener's granulomatosis either began during or was otherwise caused by his military service, to include his presumed exposure to both herbicides and radiation therein. The weight of the medical evidence similarly tilts against a conclusion that the Veteran's Wegener's granulomatosis is either secondary to or was otherwise aggravated by his service connected bladder cancer. Given these conclusions, there is no reasonable doubt which can be resolved in the Veteran's favor and the criteria for service connection have not been met. Accordingly, the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in June 2005, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private and VA treatment records have been obtained, as have service treatment records. Additionally, the Veteran and his wife testified at a hearing before the Board. A medical opinion was also obtained and associated with the claims file. The opinion addressed the Board's questions directly and the examiner provided a complete rationale for his conclusions, basing it on his review of the claims file, his professional training, and the medical literature on the subject. The Veteran was provided notice that such an opinion was being sought, and was then provided with a copy of the opinion and given 60 days to respond to the opinion and/or to submit evidence refuting the doctor's opinion. To this end, the Veteran's representative provided a statement in December 2012, but no additional medical evidence was submitted. Moreover, neither the Veteran nor his representative has raised a challenge to the adequacy of the medical opinion which was obtained, and the Board finds that the opinion was fully adequate. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claim of whether the reduction of the rating for service connected bladder cancer residuals was proper is dismissed. Service connection for Wegener's granulomatosis is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs