Citation Nr: 1334898 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 08-13 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for anemia. 2. Entitlement to service connection for sterility. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to September 1958. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of service connection for coronary artery disease and cardiovascular disease and whether the Veteran's countable income is excessive for purposes of non-service-connected pension benefits were decided by the Board in January 2010. At that time, the issues currently on appeal were remanded to the RO. The Veteran presented testimony at a Board hearing in December 2008, and a transcript of the hearing is associated with his claims folder. 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). FINDING OF FACT The Veteran's anemia, sterility, and COPD were not manifest in service and are unrelated to any incident of service, including radiation exposure or participation in a "radiation-risk activity". CONCLUSION OF LAW The criteria for service connection for anemia, sterility, and COPD are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.311, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by letters dated in June and September 2007. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. It was evident that the Veteran understood what the evidence must show to establish entitlement at the time of his December 2008 hearing. VA has obtained service personnel and treatment records; assisted the Veteran in obtaining evidence; compiled a radiation dose estimate; obtained medical opinions in 2011 regarding in-service radiation exposure and the disabilities at issue; and afforded the Veteran the opportunity to give testimony before the Board. The medical opinions considered whether the Veteran's anemia, sterility, and COPD were related to in-service radiation exposure based on the highest radiation doses that the Veteran could have received as a result of his participation in Operation REDWING, and they also considered the other relevant evidence in rendering the medical opinions necessary. These medical opinions were therefore adequate. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's January 2010 remand by requesting additional available records concerning the Veteran's in-service radiation exposure; forwarding his records to the Undersecretary for Health for preparation of a dose estimate; referring the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311; and readjudicating his claims and providing him with a supplemental statement of the case. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) requires the development of a dose assessment when it is contended that a Veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed and when it is established that a radiogenic disease subsequently developed. 38 C.F.R. § 3.311(b) indicates that when it is determined that a Veteran was exposed to ionizing radiation during service and subsequently develops a radiogenic disease, the claim will be referred to the Under Secretary for Benefits for further consideration on matters of causation due to radiation exposure. For radiation presumptive service connection purposes pursuant to separately applicable 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.309(d), a "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a "radiation-risk activity". Operation REDWING is listed as such a "radiation-risk activity" under those provisions. Diseases which are presumptively service-connected based upon "radiation-exposed veteran" status pursuant to separately applicable 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.309(d) do not include anemia, sterility, or COPD. See 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). 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. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a Veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. The Board has considered all evidence of record, including that found in Virtual VA. The Veteran seeks service connection for anemia, sterility, and COPD. Based on evidence of record, the Board is satisfied that each of these is present. However, none is shown in service. The Veteran does not claim that any of them was manifest in service. Additionally, his service treatment records are silent for reference to them, including on service discharge examination in September 1958, when all pertinent clinical evaluations were normal. The disabilities are undocumented by available medical records until years post-service. The Veteran alleges that the disabilities at issue were due to exposure to ionizing radiation sustained during his documented participation in Operation REDWING in 1956. He indicated in July 2007 that he had been sterile since the 1960's due to radiation exposure. In October 2007, he indicated that after service discharge, he and his wife tried to start a family, but were unsuccessful, and so they saw a doctor in 1958. After several tests, the doctor told the Veteran that he was sterile. On questioning the Veteran, he learned that the Veteran had participated in Operation REDWING and informed the Veteran that he had no doubt that this caused his condition and had probably caused more damage than the Veteran knew. In the years since, the Veteran had developed lung problems and was always anemic. In April 2008, the Veteran indicated that he knows in his heart that the disabilities at issue are from exposure to radiation. In December 2008, it was argued that in-service radiation exposure could have caused the disabilities at issue, even though they are not on the list of presumptively service-connected diseases given participation in a "radiation-risk activity". In January 2009, a VA osteopath wrote that the Veteran was exposed to ionizing radiation while in the Navy, and that it is as likely as not that this exposure attributed to his infertility and chronic anemia, and that it exacerbated his COPD. In January 2010, the Board remanded the case to the RO for, among other things, an in-service radiation dose estimate as a result of the Veteran's participation in Operation REDWING, and consideration by the Under Secretary of Benefits under 38 C.F.R. § 3.311 with regard to the claims. In September 2011, a VA health physicist, writing for VA's Director of Environmental Agents Service, considered the relevant evidence including the maximum doses of ionizing radiation which the Veteran could have received as a participant in Operation REDWING. He concluded that it was unlikely that the Veteran developed COPD from only 21 rem combined internal and external dose, particularly in light of the fact that the Veteran was a former smoker until 2006. Smoking is a known causative factor for this disease, and one far more common than ionizing radiation. He noted that at high doses, radiation is capable of causing acute and chronic pneumonitis. However, the doses of whole body radiation required to induce 5 % incidence of those conditions within 5 years was 1750 rem, which was almost 2 orders of magnitude above the exposure the Veteran received. The health physicist also concluded that it was unlikely that the Veteran's anemia and/or sterility could be attributed to ionizing radiation exposure while in service. He noted regarding anemia that red blood cells will show a slow decline in the blood count for 2-3 weeks followed by return to normal after radiation doses in the 200 to 400 rem range, that the Veteran's total radiation dose was 21 rem (internal and external) to the blood forming organs, and that anemia occurring after a long latency period is not associated with radiation exposure. The health physicist also noted that sterility caused by radiation exposure is directly related to the dose. The estimated threshold dose equivalent for induction of temporary sterility in the adult human testis is 150 rem. The threshold for permanent sterility is 350 rem when received as a single exposure. That radiation dose was not a whole body dose, but rather the dose which would need to be received by the testes. The whole body dose associated with this corresponding dose to the testes would be much higher and would have probably resulted in some type of radiation damage to other organs (if such higher dose had in fact occurred - it did not). In October 2011, VA's Director of Compensation Service noted all of the above information, and that the Veteran was 19 years old when he was exposed to ionizing radiation. He took note of the January 2009 letter from the VA osteopath, as well as the Veteran's attributes as shown on his service discharge certificate, and the fact that he smoked 1 pack of cigarettes a day before quitting in 206, and that he had no family history of cancer or leukemia. The Director opined following review of the evidence in its entirety that there was no reasonable possibility that the Veteran's COPD, anemia, and sterility were the result of his radiation exposure during service. Based on the evidence, the Board concludes that service connection is not warranted for anemia, sterility, or COPD. These disorders were not manifested in service, and the preponderance of the evidence indicates that they are each unrelated to service. While the Veteran's VA osteopath indicated in January 2009 that it was at least as likely as not that the Veteran's in-service ionizing radiation exposure was related to his infertility and chronic anemia, and that it exacerbated his COPD, it is unclear what evidence the osteopath considered in rendering such opinions, and no reasons were given for the conclusions reached. Accordingly, the Board finds that it has little, if any, probative weight. On the other hand, the VA medical opinions rendered in September and October 2011 were clearly based on a review of relevant evidence, including the maximum dose of radiation to which the Veteran could have been exposed in service, and medical empirical data which shows the dose the Veteran received was much lower than the dose levels that medical science proves affect the organs in question. The Veteran's age at the time of exposure as well as his personal and family history were also considered. Accordingly, the latter medical opinions are deemed very probative -- much more probative than the one from the Veteran's VA osteopath in January 2009. Prejean v. West, 13 Vet. App. 444 (2000) (factors for determining probative value of medical opinions include their thoroughness and detail, whether they discussed why contrary opinions were not persuasive, and the opinion-writer's access to relevant records). There are no other medical opinions of record relating the disabilities at issue to service. The Board notes that while the Veteran participated in Operation REDWING, which is listed as a "radiation-risk activity" under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the disorders which he is claiming are not listed under those provisions as presumptively service-connected given participation in such "radiation-risk activity". Accordingly, those provisions do not permit an allowance of any of the claims. In light of the above, service connection is not warranted for anemia, sterility, or COPD. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for anemia, sterility, and COPD is not warranted. The appeals are denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs