Citation Nr: 1601182 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 08-39 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for thyroid cancer, status post thyroidectomy, to include as due to radiation exposure. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to February 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The issue of entitlement to service connection for a low back disorder is addressed in the remand portion of the decision below. FINDINGS OF FACT 1. The Veteran is not considered a radiation-exposed veteran. 2. The evidence does not show that the Veteran's currently diagnosed thyroid cancer originated in service or was otherwise etiologically related to any incident in service, to include exposure to ionizing radiation. CONCLUSION OF LAW Thyroid cancer was not incurred in or aggravated by the Veteran's active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). Proper notice from the VA must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's May 2007 letter advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has been satisfied in this case. The Veteran's available service treatment records, dose estimate, and identified private and VA treatment records were obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to a January 2012 remand, the RO obtained the Veteran's service personnel records and followed the appropriate procedures for developing a claim based on exposure to ionizing radiation in service. The United States Air Force Medical Support Agency (AFMSA) indicated that a search of the Master Radiation Exposure Registry (MRER) revealed no external or internal radiation exposure data for the Veteran. The AFMSA attempted to estimate the Veteran's level of exposure from radar systems to the extent feasible based on the findings of a meta-analysis performed on over 46,000 Air Force personnel who were entered in the Air Force dosimetry program based on potential for exposure to radar systems, as well as scientific studies performed by the National Council on Radiation Protection and Measurements, the World Health Organization, the National Radiological Protection Board, and an extensive epidemiological study of the United States Navy personnel working with radar systems. Moreover, the AFMSA attempted to estimate the Veteran's level of exposure from the Chernobyl accident based on numerous assessments performed by the United Nations Scientific Committee on the Effects of Atomic Radiation. The RO also obtained medical opinions from the Director of Compensation Service and the Post 9-11 Environmental Health Program, writing for the Under Secretary for Health. Accordingly, the Board finds that the RO substantially complied with the January 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board recognizes that the opinion of the Post-911 Environmental Health Program contains some factual inaccuracies. Specifically, it was noted that the Veteran was stationed in Germany shortly after the 1986 Chernobyl accident when, in fact, he was stationed on Shemya Island. However, the Board takes judicial notice of the fact that the distance between Shemya Island and the site of the Chernobyl accident is greater than the distance between Germany and the site of the Chernobyl accident. See Yoeman v. West, 140 F.3d 1443 (Fed. Cir. 1998) (noting that the Board, and its reviewing Courts, may take judicial notice of facts, as compared to evidence, which are not subject to interpretation). Thus, the Veteran is not prejudiced by this error. Additionally, the opinion contains a citation to a World Health Organization publication on the health effects of the Chernobyl accident which refers to "cancers other than thyroid cancer," when the Veteran has a diagnosis of thyroid cancer. However, as will be discussed herein, the medical opinions indicate that Alaskan radiation exposures from the Chernobyl accident were negligible. Thus, this error does not affect the ultimate opinion that the health risks associated with the Veteran's estimated level of exposure is either too small to be observed or nonexistent. Accordingly, the Board finds that VA has obtained an adequate dose estimate and medical opinion pursuant to 38 C.F.R. § 3.311. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. The Veteran seeks service connection for thyroid cancer, which he contends is due to in-service exposure to ionizing radiation while stationed on Shemya Island in Alaska. He reports that he was subjected to constant radiation exposure from super high power radar used in the area where he lived and worked. He also asserts that advanced electronic jamming and radar equipment installed on the planes to monitor Soviet missile tests contributed to his radiation exposure. Additionally the Veteran contends that he was exposed to radiation due to his proximity to the site of the April 1986 Chernobyl accident, although he was stationed in Alaska approximately nine months after the accident occurred. 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. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). The three different methods are as follows: (1) under 38 C.F.R. § 3.309(d) if the veteran is radiation-exposed and diagnosed with one of the 15 types of cancer that are presumptively service connected; (2) under 38 C.F.R. § 3.311(b) if the veteran is diagnosed with a radiogenic disease and certain conditions are met, or (3) by establishing the elements for direct service connection. See Id. First, there are certain types of cancer, including thyroid cancer, which can be presumptively service connected for radiation-exposed Veterans. 38 U.S.C.A. § 1112(c); 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. Radiation-risk activity is defined to mean onsite 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 (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. Radiation-risk activity also includes certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; in certain circumstances, service before January 1, 1974, on Amchitka Island, Alaska if, during such service, the Veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests; or service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000. See 38 C.F.R. § 3.309(d)(3)(ii). Although the Veteran worked as an aerospace ground equipment mechanic around high powered radar equipment on the Shemya Air Force Base in Alaska, service treatment records and personnel records do not indicate that the Veteran was ever exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow or Cannikin underground nuclear tests on Amchitka Island, Alaska. The evidence does not show, and the Veteran has not asserted that he participated in a radiation-risk activity as defined by the regulations. Therefore, he is not a radiation-exposed veteran and the presumptive provisions of section 1112(c) and 38 C.F.R. § 3.309(d) are not applicable in this case. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Second, radiogenic diseases will be service connected provided certain processing conditions are met. 38 C.F.R. §§ 3.303(d), 3.311. Pursuant to 38 C.F.R. § 3.311, when it is determined that: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulations, a request for available records concerning the veteran's exposure to radiation will be made and the case will be referred to the Under Secretary for Health for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran's disease resulted from radiation exposure during service. 38 U.S.C.A. § 501 (West 2014); 38 C.F.R. § 3.311(b). The term radiogenic disease means a disease that may be induced by ionizing radiation and includes thyroid cancer. 38 C.F.R. §§ 3.311(b). The diseases listed in 38 C.F.R. 3.309(d), including thyroid cancer, are diseases in which the VA has determined that a positive association with radiation exposure exists. For cancer, the disease must have manifested five years or more after exposure. 38 C.F.R. § 3.311(b)(5). This section does not provide presumptive service connection for radiogenic diseases, but only outlines a procedure to be followed for adjudication purposes. Medical opinions are ultimately the criteria upon which service connection rests under this regulation. As previously noted, the RO requested the Department of the Air Force to provide a dose assessment in March 2012. The AFMSA indicated that the United States Air Force MRER did not contain any radiation exposure for the Veteran. The AFMSA explained that there is a potential for exposure to ionizing radiation when working near some radar systems, but the specific exposures for the Veteran could not be determined. However, to provide a logical perspective for the Veteran's potential exposure, the AFMSA analyzed data from Air Force personnel who were entered into a dosimetry program because of their potential radiation exposure. Based on that data the AFMSA concluded that only five percent had any measurable dose and 0.1 percent had lifetime doses greater than 0.300 roentgen equivalent for man (rem). The average annual exposure to background radiation in the United States is approximately 0.620 rem. The AFMSA also addressed exposure to low-level radiofrequency radiation and cited scientific authority which stated that there are no long-term effects, including cancer, from such exposure. Additionally, the AFMSA addressed the potential for radiation exposure due to proximity to the Chernobyl accident. Citing to scientific authority which stated that Belarus, Russia and the Ukraine saw the most significant doses and other European countries were considered distant, receiving on average 0.03 rem, the AFMSA concluded that since Alaska is even more distant, Alaskan exposures were negligible. In August 2012, the Director of the Post 9-11 Environmental Health Program, writing for the Under Secretary for Health, opined that it was unlikely that the Veteran's thyroid cancer can be attributed to ionizing radiation exposure while on military service. Regarding the Veteran's radiation exposure due to high powered radars, the Director of the Post 9-11 Environmental Health Program used the information submitted by the AFMSA and also cited to scientific authority which stated that the health risks associated with exposures below five to ten rem are either too small to be observed or nonexistent. In September 2012, the Director of Compensation Service, citing the above-referenced opinions, opined that following a review of the record in its entirety, there is no reasonable possibility that the Veteran's thyroid cancer is the result of exposure to ionizing radiation. Given the official findings above, obtained pursuant to certain processing conditions involving radiogenic diseases, the Board finds that service connection for thyroid cancer is not warranted with application of the provisions of 38 C.F.R. § 3.311 alone. See Ramey v. Brown, 120 F.3d 1239, 1245 (Fed. Cir. 1997). Lastly, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but also must 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. Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease, injury, or event and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). With respect to a nexus or connection between the Veteran's thyroid cancer and active duty service, the evidence of record includes the Veteran's statements, internet articles, a private medical opinion and the above-referenced VA medical opinions. The Veteran contends that his thyroid cancer was incurred in or aggravated by radiation exposure during military service. To the extent the Veteran himself has opined that his thyroid cancer began in service the Board finds that opinion on the etiology of thyroid cancer is more suited to the realm of medical, rather than lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The evidence of record does not indicate that the Veteran has had any specialized education, training, or experience in determining the etiology of thyroid cancer. Thus, the Board finds that the Veteran's assertions are not competent evidence of a nexus between in-service radiation exposure and his currently diagnosed thyroid cancer. See King v. Shineski, 700 F.3d 1339, 1344 (Fed. Cir. 2012). The Veteran has also submitted articles to support his assertions. Specifically, the articles detail the giant radar facility on Shemya Island; the risk factors, such as radiation exposure that are associated with thyroid cancer; and information about the deposition of radionuclides in the United States following the Chernobyl accident. The Board has reviewed these articles and notes that the Chernobyl article says nothing about health risks in Alaska. The article about Shemya Island does not say anything about exposures leading to thyroid cancer. The article about thyroid cancer specifically refers to "high levels of radiation exposure," including fallout from atomic weapons testing and nuclear power plant accidents; however, there is no evidence that the Veteran had any such exposures. Accordingly, the Board assigns little probative value to these articles because they constitute general research, are not specific to the Veteran's case, and do not link the Veteran's particular exposures to the development of thyroid cancer. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The Veteran also submitted a private medical opinion authored by a private treatment provider. The private physician noted that the Veteran did not have a family history of cancer and did not have any x-ray treatment around the face or neck, i.e. radiation for long periods of time, but "apparently he did work around radioactive material in the Army." Based on the Veteran's personal report of in-service exposure to radioactive material, the private physician opined that the Veteran's exposure to "radioactive material in the Army...may have been an etiology for the thyroid cancer, since it is well known that one of the causes of papillary cancer is exposure to radiation." The physician could not make any further comment on whether in-service radiation exposure was in fact the etiology of the Veteran's thyroid cancer. A review of the record reveals conflicting competent medical opinions addressing the etiology of the Veteran's currently diagnosed thyroid cancer. In weighing the evidence the Board must decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons for that determination are stated. Winsett v. West, 11 Vet. App. 420-25 (1998). The Board assigns little probative value to the private medical opinion because it was based on the physician's limited knowledge regarding the Veteran's actual radiation exposure. The private physician was admittedly unsure as to the extent of the Veteran's radiation exposure. Additionally, the opinion is speculative as evidenced by the physician's statement that radiation "may" have caused the Veteran's currently diagnosed thyroid cancer. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that medical opinions expressed in terms of "may" also imply "may or may not" and are too speculative to establish medical nexus). Therefore, the private medical opinion is afforded little probative value. The Board finds the opinions of the Director of the Post 9-11 Environmental Health Program and the Director of Compensation Service probative because they cited to scientific evidence and used actual dose estimate data provided by the AFMSA to support the opinions. Although it was incorrectly stated in both opinions that the Veteran was in Germany after the Chernobyl accident, this error actually favored the Veteran, as Germany is closer to the site of the Chernobyl accident than Alaska. Thus, the conclusion is still applicable because both opinions included discussions regarding the low level exposure to radiation experienced by the general public in an area closer than Alaska is to the Chernobyl accident. Therefore, the probative evidence of record fails to establish a nexus between the Veteran's thyroid cancer and an in-service injury, disease, or event. Accordingly, direct service connection is not warranted as the most probative evidence shows that the Veteran's thyroid cancer is not related to his active service. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for thyroid cancer, the doctrine of reasonable doubt is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for thyroid cancer is denied. REMAND The Veteran asserts that his current low back disorder manifested in service. He also reports that his military occupational specialty was an aeroground equipment manager, which required him to lift heavy equipment daily. The Veteran contends that in March 1985 he complained of low back pain and has had low back pain ever since. He reports that during service he managed the pain by taking Tylenol and aspirin and using his legs to lift things. The Veteran also asserts that during service he was incorrectly diagnosed with a muscle strain, when he actually had a ruptured disc. Service treatment records show that the Veteran complained of low back pains in March 1985 and a muscle strain was diagnosed. Within three days, the low back pain resolved and there was no further mention of low back pain in the service treatment records. Post-service private chiropractic treatment records show that the Veteran received treatment for low back pain in November 1992 and has been treated periodically since. In January 2012, the Board remanded the claim for a VA examination to determine the current nature and etiology of the Veteran's alleged low back disorder, including determining whether the Veteran had a ruptured disc. While in remand status, the Veteran underwent a VA examination in October 2012. The VA examiner indicated that the Veteran received a diagnosis of degenerative disease of the lumbar spine in 2008. Thereafter, the examiner indicated that October 2008 x-rays showed an unremarkable lumbar spine. The examiner concluded that a medical opinion could not be rendered without resort to mere speculation because the medical records did not include any documentation that the in-service back condition of 1985 became a chronic condition. In January 2013, the examiner provided the following addendum: The existing opinion rendered [October 2012] clearly states that whether all current disability(ies) of the low back are at least as likely as not (50 percent probability or greater) the result of disease or injury incurred in or aggravated by the Veteran's service I cannot state without resorting to mere speculation. This also in effect means I cannot at least as likely as not relate the current back condition to the service condition. The clearly stated rationale for this opinion is that no documentation is found indicating that the in-service back condition of March 1985 became a chronic condition and no documentation for the period March 1985 to 1992 is found to establish chronicity of the condition for this period or to be able to establish a link with the in-service spine condition. This means that the low back pain/muscle strain from March 1985 appears to have been acute-transitory/resolved with no relation to the 1992 low back complaints. [Service medical records] dated 1986 make no mention of back symptoms or conditions indicating the back condition of March 1985 had resolved. The Board finds that the October 2012 and January 2013 medical opinions are inadequate for two reasons. First, the examiner provided conflicting findings as to whether the Veteran has a current diagnosis. The examiner indicated that the Veteran had a diagnosis of arthritis from 2008, but also indicated that the 2008 x-rays of the lumbar spine were unremarkable. Second, the examiner relied solely on the lack of medical documentation to support the conclusion that a current low back disorder was not incurred in or caused by service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an "absolute bar" to service connection). When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Veteran must be afforded another VA examination completed by a different examiner. Accordingly, the case is remanded for the following actions: 1. The Veteran must be afforded the appropriate VA examination to determine whether any currently or previously diagnosed low back disorder is related to his military service. The examination must be conducted by an examiner other than the examiner who performed the October 2012 examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed low back disorder is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the issue on appeal. If the benefit sought on appeal remains denied, the RO must provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time in which to respond, before the case is returned to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015). Department of Veterans Affairs