Citation Nr: 1337194 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-19 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for hypothyroidism and thyroid cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1982 to October 1982, from October 1983 to July 1984, and from March 2003 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) Jackson, Mississippi. In March 2013, the Veteran appeared for a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT The Veteran's thyroid disability did not manifest during active service or within one year of discharge from service, and the Veteran has not shown that it developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW The criteria for service connection for hypothyroidism and thyroid cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated January 2008. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the May 2010 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duties to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. The Veteran was not provided a VA examination concerning the claim of entitlement to service connection for hypothyroidism and thyroid cancer. A VA examination will be considered necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2) (2013); 38 C.F.R. § 3.159(c)(4)(i) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement that the evidence of record indicates that the claimed disability or symptoms may be associated with the established event, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board finds that a VA examination is unnecessary. While it is clear that the Veteran has a current disability, the Board has determined that there is sufficient competent medical evidence of record to make a decision on the Veteran's claim. Therefore, a VA examination is not required. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Diseases specific to radiation-exposed Veterans shall be presumed to have been incurred in service for radiation-exposed Veterans. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The term radiation-exposed Veteran means either a Veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(i) (2013). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c)(2013) and 38 C.F.R. § 3.309(d)(2)(2013) are: Leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gallbladder, primary liver cancer (except cirrhosis or hepatitis B as indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2) (West 2002); 38 C.F.R. § 3.309(d) (2013). In claims involving radiation exposure in which a radiogenic disease first became manifest after service and did not manifest to a compensable degree within any applicable presumptive period, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1) (2013). If a claimant does not qualify as a radiation-exposed veteran under 38 C.F.R. § 3.303(d)(3)(2013) or does not have one of the presumptive diseases listed in 38 C.F.R. § 3.309(d)(2)(2013), the development procedures provided in 38 C.F.R. § 3.311 may apply if a veteran has a radiogenic disease and claims exposure to ionizing radiation in service. Radiogenic disease, means a disease that may be induced by ionizing radiation and include: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) thyroid cancer; (iii) breast cancer; (iv) lung cancer; (v) bone cancer; (vi) liver cancer; (vii) skin cancer; (viii) esophageal cancer; (ix) stomach cancer; (x) colon cancer; (xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary bladder cancer; (xiv) salivary gland cancer; (xv) multiple myeloma; (xvi) posterior subcapsular cataracts; (xvii) nonmalignant thyroid nodular disease; (xviii) ovarian cancer; (xix) parathyroid adenoma; (xx) tumors of the brain and central nervous system; (xxi) cancer of the rectum; (xxii) lymphomas other than Hodgkin's disease; (xxiii) prostate cancer; and (xxiv) any other cancer. 38 C.F.R. § 3.311(b)(2)(2013). When a claim is based on a disease other than one of those listed in 38 C.F.R. § 3.311(b)(2) (2013), VA shall consider the claim under the provisions of 38 C.F.R. § 3.311(2013), provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4) (2013). When a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact incurred during the service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's service medical records are negative for a diagnosis or treatment for thyroid cancer or hypothyroidism during active service. The first report of treatment for the Veteran's thyroid, occurred after she underwent an ultrasound that discovered a solitary nodule on the left thyroid in September 2002. The Veteran was then diagnosed with papillary carcinoma and underwent a total thyroidectomy in December 2002. The Veteran reports that she has been experiencing symptoms of hypothyroidism since December 2002. Those symptoms consists of short term memory lost, mood swings, weight fluctuation, and delayed reflexes. The Veteran asserts that the cause of her thyroid cancer was exposure to ionizing radiation while in service in October 1992. During a service exercise, the Veteran was assigned as a radiological technician and as part of her duties she conducted radiological examinations of lead coffins and human remains. She claims that she was not wearing a dosimeter at that time and was handling the human remains with no hand protection. Later, the Veteran became aware that cobalt was being used on the site, specifically on the human remains. The Veteran contends that exposure to cobalt in October 1992, was the cause of her thyroid cancer that was diagnosed in September 2002. The Veteran states that she has no family history of thyroid cancer, and that thyroid cancer is only caused by a family history or exposure to radiation. The Veteran also states that a physician told her that thyroid cancer takes 10 years to develop. She states that 10 years prior to her diagnosis in September 2002, she was exposed to cobalt radiation in the October 1992 military exercise. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypothyroidism, secondary to thyroid cancer. Service connection for disability claims due to radiation exposure during service may be established in three ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, by application of 38 U.S.C.A. § 1112(c)(2013) as implemented by 38 C.F.R. 3.309(e) (2013), certain types of cancer will be presumptively service connected for radiation-exposed Veterans. Second, enumerated radiogenic diseases may be service connected proved that certain conditions set out in 38 C.F.R. § 3.311(b)(2013) are met. Third, service connection may be established on a direct basis, as with any other claimed disability. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For the first category, a radiation exposed Veteran is a Veteran who participated in a radiation risk activity during active service. 38 U.S.C.A. 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2013). A radiation risk activity is consists of four categories of activities: occupation of Hiroshima or Nagasaki, internment as a prisoner of war in Japan during World War II, presence at a gaseous diffusion plant in Paducah, Kentucky in 1992, and service performed as an employee of the Department of Energy Employees Occupational Illness Compensation Program act of 2000. 38 C.F.R. § 3.309(d)(3)(ii)(A-E) (2013). The Veteran's duties during active service do not qualify as a radiation-risk activities. The Veteran's personnel records do not indicate that the Veteran was ever involved in any of the circumstances listed above. Moreover, the Veteran does not allege involvement in any of those activities. Therefore, the Board finds that the Veteran hypothyroidism and thyroid cancer is not subject to the presumption of service connection under the first category. The second category that the Veteran can qualify for service connection for her thyroid disability, is a claim based on exposure to ionizing radiation. 38 C.F.R. § 3.311 (2013). In April 2007, the Veteran submitted a radiation risk activity sheet concerning her exposure to radiation during active duty. In March 2008, the United States Army Dosimetry Center, Redstone Arsenal, Alabama, provided a history of exposure to ionizing radiation concerning the Veteran that covered active service from October 1982 to November 1982. The results indicated a 0.082 rem dose equivalent, for a total dose equivalent of 0.082 rem, and a total organ dose of equivalent of 0.082 rem. Those dosimeter results and the Veteran's claims file were forwarded by the Director for Compensation and Pension Services to the Under Secretary of Health, for a radiologic dose estimate and an opinion as to whether it is likely, unlikely, or at least as likely as not that the Veteran's thyroid condition was as a result of exposure to radiation in service. In July 2008, the Chief Public Health and Environmental Hazards Officers (CPHEHO) responded with a radiation review of the Veteran's claim. The CPHEHO stated that the claim of exposure to human remains contaminated with cobalt was highly improbable. The CPHEHO reported that the cobalt source does not come into direct contact with the target and all radiation ceases immediately upon removal of the source. The CPHEHO further concluded that there would be no reason for the Veteran to wear a dosimeter or film badge or any radiological protective equipment when handling irradiated materials. The CPHEHO then applied the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's thyroid cancer. NIOSH calculated a 99th percentile value for the probability of causation was 0.44 percent. The concluding opinion of the CPHEHO was that it was unlikely that the Veteran's thyroid condition could be attributed to occupational ionizing radiation exposure during active duty. In July 2008, the Director of Compensation and Pension Services issued an opinion that there was no reasonable possibility the Veteran's thyroid cancer was a result of her occupational exposure to radiation during service. The Board finds that the CPHEHO opinion is most probative in finding that service connection for a thyroid condition is not warranted. CPHEHO's opinion was based on medical and scientific data concerning radiation exposure levels and probabilities that level of dosage could cause the Veteran's thyroid condition. Although the evidence does not support a finding for service connection for a thyroid condition under a presumptive basis or under a claim for exposure to ionizing radiation claim, the Veteran can still prevail if she can meet the factors required to be successful for a direct service connection claim. Those factors are the existence of a present disability; an in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service, nexus requirement. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). While the Board finds that the Veteran has a current disability, the second and third factors are not present in this case. The Veteran's service medical records are absent of any treatment or report of symptoms of a thyroid condition. As for the nexus requirement for a direct service connection claim, an expert opinion has been submitted by the Director of Compensation and Pension Services. That opinion, based on expert medical and scientific principles, concluded that there was no reasonable possibility that the Veteran's exposure to ionizing radiation in service or during the October 2002 military exercise, was related to the Veteran's current thyroid condition. Because there is competent and persuasive evidence that there is no reasonable possibility that the ionizing radiation exposure caused the thyroid disability, the Board finds that further examination is not needed to decide this claim. 38 C.F.R. § 3.159(c) (2013). Therefore, the Board finds that the preponderance of evidence is against granting the Veteran's claim of entitlement to service connection for a thyroid condition. The CPHEHO's nexus opinion outweighs the Veteran's claims regarding the nexus and etiology of her thyroid condition. In reaching this decision the Board has not ignored the Veteran's statements or the evidence submitted in support of her claim. The Veteran has submitted numerous statements in support of her claim. Those statements assert that she was exposed to cobalt radiation during the October 2002 military exercise which consisted of her taking radiological images of coffins and human remains without wearing any radiological protective equipment. The Board finds the Veteran competent and credible to report the details of the October 2002 operation and her duties during that mission. However, the Board does not find the Veteran competent to provide a medical opinion as to the etiology of a thyroid disability. The Veteran states that she contracted thyroid cancer due to her exposure to cobalt radiation. She states that she had no family history of thyroid cancer and that a physician explained to her that there are only two ways to contract thyroid cancer, family history and exposure to radiation. The Veteran then concluded that since it had been 10 years since she was exposed to cobalt radiation in 1992 and due to the fact that she had an absence of any family history of thyroid cancer, then the cause of her condition was due to the October 1992 military exercise. While the Board finds that the Veteran is an expert in her field as a radiological technician, the diagnosis of thyroid cancer due to exposure to radiation is outside the realm of knowledge of a radiological technician and requires a greater level of medical training. The Board finds that for the purposes of providing an etiological opinion, the Veteran is a lay person and is competent to report observable symptoms she experiences through her senses, such as mood swings and delayed reflexes. Layno v. Brown, 6 Vet. App. 465 (1994). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, an opinion concerning the relationship between exposure to cobalt radiation and the Veteran's current thyroid condition is of a medically complex nature. This diagnosis and analysis requires expert medical training, which the Veteran has not demonstrated she possesses. Therefore, the Board finds that the Veteran is not competent to render an opinion as to the etiology of her thyroid condition. The Veteran has also submitted internet research, that consist of a summary of the element cobalt. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1) (2013) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30 (1993); Beausoleil v. Brown, 8 Vet. App. 459 (1996); Libertine v. Brown, 9 Vet. App. 521 (1996). Because the information provided in the article is generic and does not specifically relate to the facts and circumstances surrounding this particular case, it holds less probative weight than the determinations of the CPHEHO, who considered the Veteran contentions and provided an opinion to the specific circumstances of the Veteran's. The Board notes that the article reports that cobalt-60 is a powerful gamma ray emitter and exposure to cobalt-60 is a cancer risk. In reviewing that article, that is the only sentence regarding the risk of cancer from exposure. The article does not specify what types of doses will generate a substantial risk of cancer, nor does the article specify what types of cancer cobalt-60 may cause. The Board finds that the article is of minimal probative value as it is general in nature and lacks any analysis regarding exposure levels and cancer. It is also unaccompanied by any competent opinion evidence favorable to the Veteran. The Board finds that the article is outweighed by the expert CPHEHO opinion regarding the probabilities of cobalt exposure causing the Veteran's thyroid condition. In summary, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypothyroidism and thyroid cancer on any reasonably raised theory of entitlement. Therefore, the Veteran's appeal must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypothyroidism and thyroid cancer is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs