Citation Nr: 1311960 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 06-00 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for kidney failure, status post renal allograft transplantation, due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION 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). The Veteran had active service from July 1952 to December 1961. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. A timely notice of disagreement was submitted in March 2005, a statement of the case was issued in December 2005, and a VA Form 9 was received in December 2005. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in November 2006. A transcript is associated with the claims file. In Bryant v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki 23 Vet. App. 488 (2010). In regard to the first duty, during the hearing, the Veterans Law Judge enumerated the issue on appeal. In regard to the second duty, the duty to suggest the submission of evidence that may have been overlooked was also accomplished throughout the hearing. The Veteran was informed of the type of evidence that would be supportive of his claim. In September 2007, the Board remanded this claim to send the Veteran a corrective VCAA notice, which was accomplished in December 2007; to verify the Veteran's service in the Marshall Islands, which was partially completed and addressed in a subsequent Remand; to contact the Social Security Administration and obtain any additional records, which was completed in December 2007; to contact the Veteran's private physician and obtain the records the Veteran used to formulate his March 2005 opinion, which was addressed in a subsequent Remand; and to develop the claim in accordance with 38 C.F.R. § 3.311, to include obtaining a dose estimate, which was also addressed in a subsequent Remand. In August 2009, the Board remanded this claim to obtain the Veteran's unit histories to verify the Veteran's service in the Marshall Islands, which was accomplished in February 2010; to contact the Veteran's private physician and obtain the records the Veteran used to formulate his March 2005 opinion, which was accomplished in October 2009; and to develop the claim in accordance with 38 C.F.R. § 3.311, to include obtaining a dose estimate, which was accomplished in July 2010. In September 2012, the Board remanded this claim to obtain additional treatment records and to obtain another opinion from the Environmental Health Program (EHP) Director that was based on the correct facts. Additional medical records have been associated with the claims file. Also, an opinion from the EHP Director was obtained in November 2012. That development having been completed, the claim is now ready for appellate review. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation during military service. 2. Kidney failure is not shown to be a radiogenic disease, was not manifest during active service, and is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. The Veteran is a "radiation-exposed Veteran." 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2012). 2. Kidney failure was not incurred in or aggravated by military service nor may service connection be presumed as a result of ionizing radiation exposure. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five 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 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the present case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in October 2004 that fully addressed the entire notice element and was sent prior to the initial regional office decision in this matter. The letter informed him of what evidence was required to substantiate his claims and of his and the VA's respective duties for obtaining evidence. The Veteran received additional letters in December 2007 and February 2008. In any event, in his statements the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claims. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in December 2007 the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The claim was subsequently adjudicated in a November 2012 supplemental statement of the case (SSOC). The regional office successfully completed the notice requirements with respect to the issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment and hospitalization records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, 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). The regional office has obtained VA outpatient medical records, private medical records, and multiple medical opinions regarding the etiology of his kidney failure. Virtual VA records have also been reviewed. The Veteran's service treatment records could not be located, presumably as a result of the 1973 fire at the National Personnel Records Center (NPRC). In cases in which the Veteran's service treatment records are missing and are presumed to have been destroyed in the July 1973 fire at the NPRC, the VA has a heightened duty to explain its findings and conclusions. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The RO submitted requests for records during the time of the Veteran's active service. The records were reported to be fire related. The RO notified the Veteran in October 2004 of the inability to obtain the records in accordance with 38 C.F.R. § 3.159(e). The Veteran was given the opportunity to send the VA any further evidence he had pertaining to his claims. The Board also finds that the RO has complied with the procedures set forth in 38 C.F.R. § 3.309 and § 3.311 for the development of claims based on exposure to ionizing radiation. See Hilkert v. West, 12 Vet. App. 145, 148-50 (1999); aff'd, 232 F.3d 908 (Fed. Cir. 2000). A dose estimate was obtained in July 2010. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to Service Connection for Kidney Failure, Status Post Renal Allograft Transplantation, Due to Exposure to Ionizing Radiation The Veteran seeks entitlement to service connection for kidney failure, status post renal allograft transplantation, due to exposure to ionizing radiation. He asserts that he developed kidney failure as a result of being exposed to ionizing radiation during service. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Certain chronic diseases, such as nephritis, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In the instant case, however, service connection fails on this basis because the Veteran's kidney failure was not medically diagnosed until 1999, which is more than 35 years after the Veteran's discharge from service. With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a 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. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because nephritis is specifically listed as a chronic disease under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is for application in this claim. In the instance case, however, the Veteran does not allege that his kidney failure was noted in service, or that symptoms of a chronic kidney disorder were noted in service which have continued since. Rather, the Veteran maintains that his kidney failure results from his exposure to ionizing radiation in service. Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. 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 where a person is a "radiation-exposed Veteran" as statutorily defined. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as either a Veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device (see 38 C.F.R. § 3.309(d)(iv)); 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 (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(b)(i), (ii). Diseases which are presumptively service-connected based upon "radiation-exposed Veteran" status are: cancers of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile duct, gallbladder, liver, salivary gland, urinary tract, bronchio-alveolar, bone, brain, colon, lung, and ovary; as well as leukemia, multiple myeloma, and lymphomas (except Hodgkin's disease). 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). 38 C.F.R. § 3.311, which is separately applicable from 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), provides instruction on the development of claims based on exposure to ionizing radiation, and does not refer to any other types of radiation exposure. Section 3.311(a) calls 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. "Radiogenic disease" under 38 C.F.R. § 3.311 is defined as a disease that may be induced by ionizing radiation, and specifically includes a variety of types of cancers. 38 C.F.R. § 3.311(b)(2)(i) - (xxiv). The list includes kidney cancer, but not kidney failure. 38 C.F.R. § 3.311(b)(2)(vii). Section 3.311(b)(5)(iv) provides that unless excepted (which is not the case here) under that section, the radiogenic disease must be become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(4) also requires 38 C.F.R. § 3.311(b) development where there has been submitted competent scientific or medical evidence that a disease not listed at 38 C.F.R. § 3.311(b)(2)(i) - (xxiv) is a radiogenic disease. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The Veteran reports the onset of kidney problems in August 1999. See September 2004 VA Form 21-526. The available VA clinical records indicate a history of chronic renal failure in March 2000, a renal cyst in February 2002 and end-stage renal disease in November 2002. The Veteran subsequently underwent a renal allograft transplantation in 2004. The Veteran's service in Operation CASTLE constitutes participation in a "radiation-risk activity" as defined by 38 U.S.C.A. § 1112(c)(3)(b) and 38 C.F.R. § 3.309(d)(3)(i). Thus, he is a "radiation exposed Veteran" under 38 U.S.C.A. § 1112(c)(3)(A) and 38 C.F.R. § 3.309(d)(3). Even though the Veteran is a "radiation exposed Veteran" this is not sufficient, by itself, to warrant presumptive service connection under the provisions of 38 C.F.R. § 3.309(d). Rather, he must be diagnosed with one of the presumptive diseases specifically listed under 38 C.F.R. § 3.309(d)(2) and, here, kidney failure is not listed as a disease presumed to be service-connected under 38 U.S.C.A. § 1112(c) and 38 C.F.R. §§ 3.307 and 3.309, even given his "radiation-exposed Veteran" status. Even though the Veteran participated in a "radiation-risk activity" and is a "radiation-exposed Veteran," because kidney failure is not among the diseases specified at 38 C.F.R. § 3.309(d), service connection cannot be granted on a presumptive basis. However, the provisions of 38 C.F.R. § 3.311 establish a procedure for handling claims brought by radiation exposed Veterans based on a contention of radiation exposure during active service and post-service development of a radiogenic disease. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). 38 C.F.R. § 3.311 essentially states that when it is established that a radiogenic disease first became manifest after service, allegedly due to inservice ionizing radiation exposure, a dose assessment will be made. However, kidney failure is not a disease which is among the radiogenic diseases specified in 38 C.F.R. § 3.311(b)(2). Importantly, however, the Veteran's private physician submitted a statement in March 2005 opining that the Veteran's kidney condition was as likely as not caused by exposure to radiation during his time in service. The opinion suggested that the Veteran's kidney condition might be a radiogenic disease. As a result, the RO was directed to obtain an assessment as to the size and nature of the radiation dose or doses to which the Veteran was exposed. In July 2010, the Defense Threat Reduction Agency (DTRA) determined that the Veteran's participation in Operation CASTLE resulted in ionizing radiation exposure that was no more than an external gamma dose of 18 rem, an external neutron dose of 0.5 rem, an internal committed dose to the kidney (alpha) of 1.5 rem and an internal committed dose to the kidney (beta + gamma) of 8 rem. In November 2012, a medical opinion was obtained from the Director of the Post 9-11 Era Environmental Health Program (EHP). The Director noted that the Veteran was diagnosed with chronic kidney disease with several progressive symptoms that began as early as 1999 and that he participated in Operation CASTLE. The Director noted the levels of radiation received by the Veteran, as explained in the July 2010 Report. The Director stated that while high doses of radiation are known to cause renal failure, the tolerance dose during radiation therapy for an adult kidney appears to be approximately 23 GY (2300 rads) in five weeks to the parenchyma of both kidneys. The Director noted this is well above the 9.5 rem that the Veteran received. As a result, the Director opined that it is unlikely the Veteran's chronic kidney disease can be attributed to ionizing radiation exposure while in the military. Subsequently, in November 2012, the Director of Compensation and Pension reviewed the medical opinion from the EHP and as a result of the July 2010 dose estimate and following a review of the evidence, the Director of Compensation and Pension opined that there is no possibility that the Veteran's chronic kidney disease resulted from his exposure to ionizing radiation in service. Based upon the evidence of record, the Board finds that kidney failure is not shown to be a radiogenic disease, was not manifest during active service, and is not shown to have developed as a result of an established event, injury, or disease during active service. Although the Veteran is shown to have participated in Operation CASTLE, the record evidence does not persuasively show that any kidney disease (or injury) was incurred during active service or that kidney failure developed as a result of ionizing radiation exposure. In making this determination, the Board notes that the Veteran's physician submitted a medical opinion in March 2005 opining that the Veteran's kidney condition was as likely as not caused by exposure to radiation during his time in service. This opinion conflicts with the November 2012 opinions from the EHP Director and the Director of Compensation and Pension. Where the Board is presented with conflicting medical evidence, it is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Court has declined to adopt a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). Instead, the Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases). The March 2005 private physician's opinion provided no explanation or rationale. As a result, in a August 2009 Remand, the Board instructed the RO to contact the Veteran's private physician, obtain all medical records relied upon for the conclusion regarding the etiology of the Veteran's kidney failure, and to ask the physician to identify which medical records or other documents were used to formulate the opinion. A request was sent to the private physician in January 2010; although additional medical records were obtained, the physician did not provide any further rationale for the March 2005 opinion. Accordingly, the Board accords the March 2005 private opinion little probative value. There is no indication that the March 2005 physician reviewed the Veteran's claims folder, to include the reports of radiation levels the Veteran was exposed to, thus the physician had no knowledge of the level of the Veteran's ionizing radiation exposure. Moreover, the physician did not provide a rationale for the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Hence, this opinion is given limited probative value. The March 2005 opinion, without any supporting rationale, knowledge of the levels of radiation exposure, or citation to medical studies, is in contrast to the November 2012 opinions from the EHP Director and the Director of Compensation and Pension, which consisted of a complete review of the claims folder, and reference to pertinent studies pertaining to the association between ionizing radiation exposure and the development of kidney disorders. In formulating the opinion, the Directors were aware of the Veteran's levels of exposure to ionizing radiation exposure during his active service and opinions were provided in light of the dose estimate. As detailed, the November 2012 opinions cite to a study regarding tolerance doses of radiation therapy for adult kidneys. However, the Veteran's radiation dose estimate was lower than the thresholds discussed in the study. The Board accepts the November 2012 EHP opinion as being the most probative and persuasive medical evidence on the subject, as it contains detailed rationale for the medical conclusions and is based on sound medical principles. See Boggs v. West, 11 Vet. App. 334 (1998). The Board has considered the lay statements of the Veteran and his children. While the Veteran is competent to provide his observations of his what he experienced during and after service and as to some medical matters, a diagnosis of a radiogenic disease or a kidney disease, and the question of a relationship to service in this case are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to provide. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence). While the Veteran's statements that he participated in atmospheric nuclear weapons testing, and may have been exposed to ionizing radiation, are supported by the record evidence and credible, the Veteran and his children are not competent to provide medical opinions relating a radiogenic and a kidney disease to that exposure, and thus their lay statements in this regard are accorded no probative value. Accordingly, the claim fails on this basis. In short, the record evidence does not persuasively establish that the Veteran's kidney failure is a result of a disease or injury of active duty service, including his in-service exposure ionizing radiation. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for kidney failure. Accordingly, the appeal is denied. ORDER Entitlement to service connection for kidney failure, status post renal allograft transplantation, due to exposure to ionizing radiation, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs