Citation Nr: 1338840 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 03-08 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for rheumatoid arthritis, claimed due to radar and radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In October 2004, the Board remanded the case for additional development and adjudicative action. In an October 2008, decision, the Board denied entitlement to service connection for a low sperm count and rheumatoid arthritis, claimed as due to radar and radiation exposure. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2009, the Veteran and the Secretary of VA (parties) filed a joint motion to vacate the part of the Board decision that denied entitlement to service connection for rheumatoid arthritis and affirm the part of the decision that denied entitlement to service connection for low sperm count. The Court granted the motion that same month. As the Board's denial of entitlement to service connection for a low sperm count has been affirmed, that issue is no longer on appeal. The Board notes that the "Conclusion" in the June 2009 joint motion does not match the first paragraph of the motion. Specifically, in the "Conclusion," the parties refer to a May 22, 2008 Board decision that denied reopening a claim for service connection for a dental disability. The May 2008 Board decision did not address a claim of entitlement to service connection for a dental disorder. Hence, the topic sentence of the conclusion appears to be clearly and unmistakably erroneous. Accordingly, the Board has concluded that in granting the parties' joint motion, the Court was agreeing to grant the findings made in the first paragraph on page 1 of the joint motion, which addressed the specific facts in this case, versus the "Conclusion" on page 5. In October 2009, the Board remanded the claim for further development in accordance with the June 2009 joint motion. The case is now again before the Board for adjudication. In addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that they contain VA treatment records and an October 2013 Appellate Brief relevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran is not a "radiation-exposed veteran," and there is no objective evidence establishing actual in-service exposure to ionizing radiation. 2. Rheumatoid arthritis was first shown in the 1980s, and there is no competent medical evidence that it is otherwise due to service. CONCLUSION OF LAW Rheumatoid arthritis was not incurred in or aggravated by service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been fully met. There is no issue as to providing an appropriate application form or completeness of the application. While VA failed to fully comply with the provisions of 38 U.S.C.A. § 5103 prior to issuing the December 2002 rating decision in question, the record shows that any prejudice that failure caused was cured by the fact that VA notified the Veteran in February 2002, November 2004, and December 2005 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was not informed how ratings and effective dates are assigned in the above-described letters; however, the Board finds that he has not been prejudiced by such. Bernard v. Brown, 4 Vet. App. 384 (1993). Because the preponderance of the evidence is against the Veteran's claim for service connection, any question as to an appropriate evaluation or effective date to be assigned is moot. The case was last readjudicated in August 2013. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, to include VA medical records, private medical records, service treatment and personnel records, and providing the Veteran with a hearing. At the time of the personal hearing the issue on appeal was explained and questions were asked designed to elicit evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent argument in compliance with 38 C.F.R. § 3.103(c)(3) (2013). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The record shows that VA wrote to the Commandant of the Coast Guard in November 2004, December 2005, August 2006, and May 2007. No response was received. VA determined that the records were unavailable in a March 2008 Memorandum. Pursuant to the June 2009 joint motion, the case was remanded in October 2009 in order to provide the Veteran with additional notice regarding VA's obligations to obtain Federal records and the results of their attempts to acquire records relevant to the current appeal. In July 2010, the Veteran was sent correspondence which explained that attempts to retrieve information from the Coast Guard to verify his exposure to radiation had been futile and that VA was unable to contact individuals concerning the claim. The October 2010 supplemental statement of the case further explained that the proper steps to attempt to acquire pertinent Federal records had been followed and that further attempts to acquire records relating to radiation exposure would be futile. The letter also explained that VA would not "track down" individuals that the Veteran had served with as he had requested, but that he could contact those individuals himself and ask them to submit statements on his behalf. The Board notes that even if these individuals corroborated the Veteran's allegation of radar or radiation exposure as described by the Veteran, it would not change the fact that the appellant's alleged exposure does not meet the criteria under the regulation of having engaged in a radiation risk activity. Additionally, the Veteran has presented no evidentiary offer of proof that any of these lay persons would be able to provide competent evidence that rheumatoid arthritis is a radiogenic disease. See 38 C.F.R. § 3.311(b)(4). It is for these reasons that the Board finds that VA is not required to further assist the Veteran in obtaining statements from these individuals. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (The duty to assist is not a license for a "fishing expedition" to determine if there might be some unspecified information which could possibly support a claim; the duty is limited to specifically identified documents that, by their description, would be facially relevant and material to the claim.). The Board finds that there has therefore been substantial compliance with the October 2009 remand directives, fulfilling the duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has submitted records showing that he had been denied Social Security Administration benefits. The decision has been associated with the claims file, but the records the Social Security Administration reviewed in making its determination have not. The evidence of record indicates that acquiring such records is unnecessary, as the letter from the Social Security Administration indicates that their evidence shows that rheumatoid arthritis was diagnosed in 1989. Without competent evidence of a continuity of symptomatology, this is too remote from the Veteran's separation from service in 1967 to be able to establish a nexus between the disability and service. Additionally, the Veteran has not claimed that rheumatoid arthritis had its onset in service. Rather, he claims that he developed rheumatoid arthritis later in life as a result of radar and/or radiation exposure. There is no reason to believe that the Social Security Administration records would be pertinent to the Veteran's allegation that rheumatoid arthritis is due to purported in-service radiation exposure. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA is obligated to obtain Social Security Administration records only when those . records relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the claim.); see also Gobber, 2 Vet. App. at 472 (1992). VA did not provide the Veteran with a VA examination in connection with the claim, but examination was not necessary to make a decision on the claim. Under the law, an examination or opinion is necessary to make a decision on the claim when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4). The Board finds that there is sufficient evidence of record that the Veteran's rheumatoid arthritis may not be associated with his active duty, to include due to alleged radar and radiation exposure. For example, the record shows that rheumatoid arthritis was not diagnosed until 1989, which is more than 20 years after the Veteran's discharge from service. The Veteran has not contended that it manifested in service or to a compensable degree within one year following discharge from active duty. His allegation is that he developed rheumatoid arthritis from being exposed to radar or radiation while in service. There is nothing to substantiate that allegation. Additionally, rheumatoid arthritis is not a presumptive disease associated with radiation exposure. For these reasons, the Board finds that rheumatoid arthritis may not be associated with the claimant's service, and an examination was not necessary to reach that determination. In sum, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran contends that he has rheumatoid arthritis as a result of radar or radiation exposure while he was onboard ship during service. At the June 2004 hearing, the Veteran testified that he was stationed on the Curtis Bay as a "buoy tender." He stated he was cleaning a radar screen when it accidentally was turned on for approximately 15 minutes; this is the "radar exposure" he claims during service. The Veteran also alleged that he was exposed to radiation around 1965. He stated he was involved in replacing units on the Chesapeake Bay Bridge light which was "running off a nuclear power unit," which exposed him to radiation. The Veteran also stated at the hearing that he was diagnosed with rheumatoid arthritis in 1985 or 1986. The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service treatment records, personnel records, private and VA medical records, and testimony. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered of disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for arthritis may be granted if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred in or aggravated by military service. 38 C.F.R. § 3.303(d). Service connection may be established if a radiation-exposed veteran develops a "radiogenic disease" (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b) or established by competent scientific or medical evidence to be radiogenic disease), and if the VA Undersecretary for Benefits determines that a relationship in fact exists between the disease and the veteran's exposure in service. 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. "Radiation-risk activity" is defined to mean: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period of August 6, 1945 to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(ii). When a claim is based on a disease other than one of those listed in 38 C.F.R. § 3.311(b)(2), VA shall nevertheless consider the claim under the provisions of 38 C.F.R. § 3.311 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). The Veteran did not serve in the military prior to August 1963. He neither served in Hiroshima or Nagasaki during the pertinent regulatory period, nor was he a participant at an atmospheric detonation of a nuclear device. Further, the Veteran did not serve on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio; Oak Ridge, Tennessee; or on Amchitka Island, Alaska. There is no evidence, other than the appellant's bare assertion, that he was exposed to either radar or radiation. As such, the Veteran did not participate in a radiation-risk activity, as that term is defined by regulation. He also does not have any of the listed cancers in 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Thus, the claim of service connection for rheumatoid arthritis is not subject to presumptive service connection under 38 U.S.C.A. § 1112(c). The list of radiogenic diseases found under 38 C.F.R. § 3.311(b)(2) does not include rheumatoid arthritis. As the Veteran does not have a radiogenic disease, he must submit or cite competent scientific or medical evidence to show that this disorder is radiogenic diseases. 38 C.F.R. § 3.311(b). The Veteran has not submitted any such evidence, other than his own assertions that he developed rheumatoid arthritis as a result of his self-reported, but unverified, in-service exposure to radar and/or radiation. In this case, there is neither competent evidence showing that the Veteran's rheumatoid arthritis is a radiogenic disease, nor is there competent evidence showing that he was exposed to radar and/or radiation during service. The Board notes that the Veteran has submitted ship log notes from 1965 when he claims he was exposed to radiation when changing the light on the Chesapeake Bay. The appellant admits that ship log notes do not show such exposure. He claims that a punishment that had been given to him by his Commanding Officer had been reduced because of that exposure. There is nothing in the record, however, to substantiate that allegation. Given the foregoing, entitlement to service connection under 38 C.F.R. § 3.311 is not warranted. While service connection for rheumatoid arthritis based on exposure to ionizing radiation is not warranted, direct service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed conditions and service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Based on the evidence of record, the Board finds that entitlement to direct service connection is not warranted. The Veteran has not claimed that rheumatoid arthritis had its onset during service. The objective records, and even the Veteran's testimony at the June 2004 Board hearing, establish that rheumatoid arthritis was not manifested until approximately 20 years after his discharge from service. This is evidence against the claim for service connection for rheumatoid arthritis. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (The passage of many years between service discharge and medical documentation of a claimed disability is evidence against a claim of service connection.). In sum, service connection for a radiogenic disease is not warranted pursuant to 38 C.F.R. § 3.311 because rheumatoid arthritis is not a radiogenic disease, and there is no objective evidence of radiation exposure in service. Service connection is also not warranted under 38 C.F.R. § 3.303 as there is no competent evidence establishing a nexus between rheumatoid arthritis and service. While the Veteran has submitted numerous statements alleging that his rheumatoid arthritis is attributable to service, he does not have the requisite knowledge of medical principles that would permit him to render an opinion regarding matters involving medical diagnoses or medical etiology. The appellant, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board acknowledges that the appellant is competent to make statements regarding his experiences in service and his current arthritic symptoms. A probative medical opinion on the etiology or underlying causes of rheumatoid arthritis requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the appellant is not competent to render a persuasive or competent medical opinion on whether his rheumatoid arthritis was caused by or otherwise related to events in his military service or whether it was caused by other medical conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Hence, his assertions in this regard do not constitute competent and persuasive evidence in support of the claim for service connection. For the reasons stated above, the preponderance of the evidence is against the claim of entitlement to service connection for rheumatoid arthritis. The claim is denied. In reaching these determinations, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for rheumatoid arthritis, claimed as due to in-service radar and radiation exposure, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs