Citation Nr: 1629840 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 09-49 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for thyroid disease, claimed as thyroid cancer to include as the result of exposure to ionizing radiation. 2. Entitlement to service connection for skin cancer, to include as the result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Barbara J. Cook, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active service from April 1944 to May 1946 and from August 1947 to June 1948. This matter came before the Board of Veterans' Appeals (Board) from an September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the Veteran's claims file was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran testified before a Decision Review Officer (DRO) in October 2009 and before the undersigned Veterans Law Judge (VLJ) in August 2011. Transcripts of both hearings are associated with the record. The Board denied the Veteran's claims in February 2012. He appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2012, the Court granted the parties' joint motion for remand and returned the appeal to the Board for action consistent with the terms of the joint motion. In September 2013, the Board remanded the appeal for development of the record. The Board notes that the Veteran has filed a notice of disagreement (NOD) with respect to a June 2015 rating decision which denied a higher evaluation for bilateral hearing loss disability. Such appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the Court's decision in Manlincon v. West, 12 Vet. App. 238 (1999), it notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal. As such, no action will be taken by the Board at this time, and the issue presently before the RO pertaining to bilateral hearing loss disability will be the subject of a later Board decision, if ultimately necessary. The issue of entitlement to service connection for skin cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A thyroid disorder was not manifest in service, nor was a thyroid disorder shown within one year after discharge; a thyroid disorder is unrelated to service, including to exposure to ionizing radiation. CONCLUSION OF LAW A thyroid disorder was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The Veteran was notified of the evidence necessary to support his claim in correspondence dated in May 2007. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, identified the Veteran's duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding the VCAA. The Board finds that the content of the notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant was provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, service, VA, and private treatment records have been associated with the claims file. The Board notes that in cases involving exposure to ionizing radiation, VA has additional specific duties regarding the assistance due to claimants. In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period of time, and it is contended that a disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311(a)(1) (2015). In this case, VA's duty includes requesting any available records concerning the Veteran's exposure to radiation and forwarding all such records to the Under Secretary for Health, who will be responsible for preparation of a dose estimate to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii) (2015). In this case, all duty to assist was met with regard to 38 C.F.R. § 3.311, as will be discussed below. The Board acknowledges that the August 2012 JMR and Court Order precipitated the Board's September 2013 remand, which, in pertinent part, directed that records from the Veteran's Air Force service be obtained. However, in May 2015, the Veteran's attorney specified that the Veteran did not claim disability related to any event that occurred during his Air Force service. She indicated that the Veteran expressly waived any right to development of evidence related to that period of service, noting that the Veteran's claim related to exposure to radiation at Nagasaki, as well as exposure to intense sun during his Navy service. While the Veteran was not provided with a VA examination regarding his claim, the Board finds that one is not necessary. A current diagnosis of a thyroid disorder and in-service evidence of ionizing radiation have been established. Significantly, the claims file contains adequate competent evidence to fairly address the question of whether there is a relationship between the claimed disorder and service, including ionizing radiation exposure therein. As such, an examination is not warranted. McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis The Veteran claims service connection for a thyroid disability based on a relationship between that disability and radiation exposure sustained during active duty service in the Navy. The Veteran served on active duty from April 1944 to May 1946. Service personnel records indicate he served upon the USS Cofer, which included a period of five days in Nagasaki six weeks after deployment of the atomic bomb. A dosage reconstruction report dated in November 2007 found total external gamma dose was 0.04 rem, upper bound total external gamma dose was 0.11 rem; internal committed alpha does to the thyroid was zero rem and upper bound committed alpha dose to the thyroid was 0.001 rem; internal committed beta plus gamma dose to the thyroid was 0.1 rem and upper bound committed beta plus gamma dose to the thyroid was 1.05 rem; total skin dose (temple) beta plus gamma was 0.23 rem and upper bound total kin dose (temple) beta plus gamma was 0.69 rem. In an updated dosage reconstruction report dated in May 2008, it was reported that total skin dose (back) beta plus gamma was 0.34 rem and upper bound skin dose (back) beta plus gamma was 1.03 rem; total skin dose (nose) beta plus gamma was 0.23 rem and upper bound skin dose (nose) beta plus gamma was 0.7 rem. A June 2006 thyroid ultrasound noted some scattered hypoechoic nodules. In a July 2006 private nuclear medicine report, the impression was unremarkable thyroid scan and uptake. A July 2006 private endocrinology treatment record includes a diagnosis of hypothyroidism with a right lobe nodule. In an August 2008 letter from the Chief Public Health and Environmental Hazards Officer, the physician indicated that the Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Heath was not applicable for most non-malignant disorders, as data are generally too few to draw adequate conclusions. He indicated that the BEIR VII report indicated that several non-malignant diseases, including thyroid disease, did show a dose response. He indicated that, as a rule, they found that it was not possible to rule out a model with a threshold as high as 0.5 Sv (50 rem). The physician noted that the Veteran's thyroid dose was more than an order of magnitude below this. The physician opined that it was unlikely that the Veteran's nodular thyroid disease could be attributed to ionizing radiation exposure during service. In a June 2007 radiation risk assessment, the Veteran reported that he walked around in the city, had fantail ship duty, and, due to heat on ship, he stayed on the topside. The Veteran further reported he smoked cigarettes daily from 1942 to 1960, and his brother had cancer or leukemia. In a December 2011 private opinion by E. O., M.D., the dermatologist reviewed the dose assessment and the claims file. He noted that the Veteran's family history included a history of cancer and/or leukemia in his brother. He also noted that the Veteran had a history of smoking cigarettes from 1942 to 1970, as well as extensive sun exposure in Florida. He referenced the August 2008 letter from the Chief Public Health and Environmental Hazards Officer. Based upon a review of the entire claims file, the examiner noted that according to the record, the Veteran's non-malignant thyroid nodular disease was not at least as likely as not attributed or aggravated by ionizing radiation exposure while in military service. In December 2011, A. J., M.D., reviewed the claims file including the August 2008 letter and opined that the Veteran was found to have non-malignant thyroid nodular disease by an ultrasound. He noted that small, incidental thyroid nodules were found very commonly by ultrasound, particularly in older patients. He indicated that the prevalence of thyroid nodules in the general population, as detected by ultrasound, was in the range of 10 to 41 percent. He further noted that the Veteran's service radiation exposure was analyzed by the Chief Public Health and Environmental Hazards Officer, who found that the Veteran's doses were below that which was thought to produce and increased risk of nodular thyroid disease. He concluded that, given that nodule thyroid disease was very common in the general population, given the time that elapsed between radiation exposure and the detection of the nodules, and given the low estimated radiation dosing to the thyroid, it was unlikely that the Veteran's current thyroid disability had its onset in service, was related to (caused or aggravated by) his known radiation exposure or was otherwise the result of a disease or injury in service (less than 50 percent probability). As noted, the Veteran claims that his thyroid disorder was the result of radiation exposure during service. Service connection for a disability which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, direct service connection must be considered by way of in-service incurrence or aggravation therein, including presumptive service connection for chronic diseases. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Second, if a Veteran participated in service in a radiation-risk activity (as defined by statute and regulation), and after service developed one of certain enumerated cancers, it will be presumed that the cancer was incurred in service. 38 U.S.C.A. § 1112(c) (West 2014); 38 C.F.R. § 3.309(d) (2015). Third, if a Veteran was exposed in service to ionizing radiation, and after service, developed one of the specifically enumerated diseases within a period specified for each by law, then his claim is referred to the Under Secretary for Benefits who must determine, based on the extent of the exposure, whether there is a reasonable possibility that the disease was incurred in service. 38 C.F.R. § 3.311 (2015). A 'radiation exposed Veteran' is one who, while serving on active duty or on active duty for training or inactive duty for training, participated in a radiation-risk activity. 'Radiation-risk activity' is defined to mean on site 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 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 occupation forces in Hiroshima or Nagasaki during the period beginning on August 6, 1945, and ending on July 1, 1946. 38 C.F.R. § 3.309 (2015). Diseases subject to presumptive service connection based on participation in a 'radiation-risk activity' are the following: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myelomas; (x) lymphomas (except Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary gland; (xv) cancer of the urinary tract; (xvi) bronchial alveolar carcinoma; (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and (xxi) cancer of the ovary. 38 C.F.R. § 3.309(d) (2) (2015). 38 C.F.R. § 3.311 provides instruction in the development of claims based on exposure to ionizing radiation. Pursuant to 38 C.F.R. § 3.311, 'radiogenic disease' is defined as a disease that may be induced by ionizing radiation including those enumerated under the regulation, which includes non-malignant thyroid nodular disease. 38 C.F.R. § 3.311(b)(2) (xxiii) (2015). The United States Court of Appeals for the Federal Circuit has held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for any given disability, the claim must nonetheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F. 3d 1039, 1043-1044 (Fed. Cir. 1994). Thus, the Board must not only determine whether the Veteran has a disability that is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability is otherwise the result of active service. As an initial matter, the Board notes that the Veteran has not alleged that the claimed disability was incurred in combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2014) are not for application. First, the Board finds that service connection under 38 C.F.R. § 3.309(d), for diseases specific to radiation-exposed veterans is not warranted. Specifically, thyroid disease is not a disease that may be presumptively service connected for radiation-exposed Veterans. Therefore, service connection for thyroid disease is not warranted on this basis. Under the criteria of 38 C.F.R. § 3.311 thyroid disease is considered a radiogenic disease. Furthermore, it was established that the Veteran was present in Nagasaki in the weeks following the drop of the atomic bomb and was exposed to ionizing radiation. His thyroid disorder first manifested more than five years after his exposure. Therefore, pursuant to the provisions of 38 C.F.R. § 3.311, the Veteran's claim was referred to the Under Secretary for Benefits, or Chief Public Health and Environmental Hazards Officer, who determined that it was unlikely that the Veteran's thyroid disease resulted from his exposure to ionizing radiation in service. The Board finds that this medical opinion is entitled great probative value because the conclusion is supported by a medical rationale and is consistent with the Veteran's service treatment and personnel records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). As such, and because there is no persuasive suggestion that the information provided to the Under Secretary for Benefits is incorrect, service connection under the criteria of 38 C.F.R. § 3.311 is not warranted. As to whether the Veteran is entitled to service connection for thyroid disease on a direct basis, the Board notes that there is no competent evidence indicating that the thyroid disease is related to service. There is no lay or medical proof of thyroid disorder during service or within years of separation. Furthermore, there is no assertion that the Veteran had thyroid disease in proximity to separation from service. The first objective post-service evidence of a thyroid disorder is in a September 2005 private treatment record indicating an increased TSH level and nodules. This is more than 50 years after separation from service. 38 C.F.R. §§ 3.303, 3.308. See also 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). Significantly, the record also includes no competent medical opinion establishing a nexus or medical relationship between current the thyroid disorder diagnosed post-service and events during the Veteran's active service (other than radiation exposure), and neither the Veteran nor his representative has presented, identified, or alluded to the existence of any such opinion. To the contrary, the medical opinions in the claims file specifically state that the Veteran's thyroid disorder is not related to anything that occurred in the service. Consequently, the Board finds that entitlement to service connection for a thyroid disorder on a direct basis or on the basis of a presumption is not warranted as the preponderance of the evidence is against service connection on those bases. The Board also notes that the Veteran's statements regarding the etiology of thyroid disease do not constitute competent lay evidence as such a determination is beyond the realm of a layman's competence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). There being no competent opinions establishing that thyroid disease is related to the Veteran's service, the Board finds that service connection must be denied. In conclusion, the preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for thyroid disease is denied. REMAND In the September 2013 remand, the Board noted that the August 2012 JMR criticized VA's failure to consider the Veteran's reports of skin problems beginning in 1978 and diagnoses of skin cancer in 1984 in the metrics for estimating the Veteran's in-service ionizing radiation dose estimate. The Board observed that a diagnosis of skin cancer prior to 2003 was not noted in the dose estimate obtained in this case. Finally, the Board noted that initial consideration of the claim included notation of only three diagnoses of skin cancer, but that in subsequent years the Veteran had been diagnosed with skin cancer on multiple occasions. The Board directed that a new dose estimate be obtained, and that the claim be reconsidered by VA's Under Secretary for Benefits as outlined in 38 C.F.R. § 3.311. In December 2015, the Deputy Chief Consultant, Post Deployment Health Services, provided a radiation review. However, he does not appear to have considered the Veteran's report onset of skin problems in 1978, or his reported initial diagnosis with skin cancer in 1984, as no discussion of such is included in his memorandum. The Board additionally notes that a December 2015 memorandum from the Under Secretary for Benefits also fails to consider or discuss the Veteran's reports. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, on remand, the development directed in the Board's September 2013 remand must be completed, to include consideration of the Veteran's reported skin problems beginning in 1978, and an initial diagnosis of skin cancer in 1984. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), forward the Veteran's records concerning his radiation exposure - including any service records, his statements and testimony regarding radiation exposure, and any other information obtained while the case is Remand status - to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. (If a specific estimate cannot be made, a range of possible doses should be provided.) The resulting dose estimate must include consideration of the Veteran's reported skin problems beginning in 1978, initial diagnosis of skin cancer in 1984, and any other diagnoses of skin cancer between 1984 and 2003 noted by the Veteran. 2. If the above-requested development results in a positive dose estimate, the claim must be referred to the Under Secretary for Benefits (or designee) for consideration under 38 C.F.R. § 3.311(c). Such review should consider, and discuss as necessary, the Veteran's reported onset of skin problems in 1978, his initial diagnosis of skin cancer below the lower lip in 1984, and additional diagnoses thereafter. In addition, the opinion should consider the Veteran's family history of cancer, his sun exposure while living in Florida that included his hobby of golfing, and any other relevant factors. 3. After the above is complete, readjudicate the Veteran's claim. If a complete grant of benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs