Citation Nr: 1636523	
Decision Date: 09/19/16    Archive Date: 09/27/16

DOCKET NO.  14-23 319	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for cataracts.

2.  Entitlement to service connection for an enlarged esophagus.


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans Services


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel





INTRODUCTION

The appellant is a Veteran who served on active duty from March 1978 to April 1982.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO).  The record was subsequently transferred to the Phoenix, Arizona RO.  

The issue of service connection for cataracts is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.  


FINDING OF FACT

The Veteran is not shown to have a disability of the esophagus.


CONCLUSION OF LAW

Service connection for an enlarged esophagus is not warranted.  §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  VA's duty to notify was satisfied by a letter dated in July 2011.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veteran's service treatment records (STRs), and private and VA medical records have been secured.  In this case, there is no evidence demonstrating that any such disability is present.  The Veteran's lay statements asserting that he currently has an enlarged esophagus (a complex medical disability), that is related to service do not meet even the low threshold for providing an examination.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 86 (2006) (setting forth requirements for when examination must be provided); 38 C.F.R. § 3.159(c)(4); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay statements are competent evidence to describe the features or symptoms of an injury or illness).  The competent medical evidence of record indicates that initial tests suggesting an abnormality of the esophagus were later shown to be mistaken, as discussed below.  Therefore a medical examination to secure a linkage opinion in this matter is not necessary.  See id.  VA's duty to assist is met.


Factual Background

The Board has reviewed all of the evidence in the Veteran's record.  Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record.  Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Veteran's STRs are silent for complaints or findings concerning an enlarged esophagus.  The abdomen and throat were normal on the January 1982 service separation examination.

VA outpatient treatment records show that in May 2011, the Veteran was seen for a dilated esophagus.  It was noted he had a history of gastroesophageal reflux disease in the past that had resolved with a change in diet.  The assessment was to rule out an esophageal/retroesophageal mass.  Additional testing was recommended.  In May 2012, he stated that in March 2011 he was in the emergency room of a private hospital and thought he was having a heart attack.  He said the testing indicated he had an enlarged esophagus.  It was noted he had been advised to have a scan of his esophagus.  He was seen for an otolaryngology consultation in June 2012.  A fiberoptic laryngoscopy revealed no suspicious lesions or abnormalities.  He was to proceed with an esophagram.  A July 2012 letter from a VA physician to the Veteran was associated with his medical records.  The lettger noted that the recent fluroscopic examination of the esophagus and the swallowing mechanism showed no significant abnormality.  The letter also indicated that the findings, in conjunction with the essentially normal esophagus study, and the fiberoptic evaluation of the upper throat and larynx, should be very reassuring to the Veteran.

In October 2012, the Chief, Contingency Radiation Operations, USAF Radioisotope Committee Secretariat provided information concerning the Veteran's exposure to radiation during service.  He contacted the Air Force Safety Center, which determined that the Veteran was an armament specialist who loaded 30mm depleted uranium rounds on A-10 aircraft.  It was estimated that the Veteran received 1.4 rem during the time he performed those duties.  


Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service.  See Shedden v, Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004).

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, 44 (1996), aff'd, 120 F.3d 1239 (Fed. Cir. 1997).

First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran.  A "radiation-exposed veteran" is defined 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.  38 C.F.R. § 3.309(d)(3).  A "radiation-risk activity" is defined as 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 (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, or the Veteran's presence at certain specified additional locations.  Id.  

The second avenue of recovery is found under 38 C.F.R. § 3.311(b)(2).  This provision provides that certain listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed veteran may be service connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service.  When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c).  When such a claim is forwarded for review, the VA Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the VA Under Secretary of Health.  38 C.F.R. § 3.311(b)(c)(1).  The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure.  38 C.F.R. § 3.311(c)(1).

Pursuant to 38 C.F.R. § 3.311(b)(2), radiogenic diseases include posterior subcapsular cataracts.  A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received.  See 38 C.F.R. § 3.311(b)(4) .

Finally, there is a third avenue of recovery in a case involving radiation as the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 4, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Analysis

In this case, it is not in dispute that the Veteran was exposed to ionizing radiation during service.  However, the record does not show that he has any disability of the esophagus or that he had any such disability at any point during the pendency of the claim.  A threshold matter for consideration, as in any claim seeking service connection, is whether or not the Veteran actually has the disability for which service connection is sought.  In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Although the Veteran recently reported an enlarged esophagus, underlying pathology was not found and the record is devoid of any findings related to, or diagnosis of, a disability involving the esophagus.  The Board finds that the Veteran has not presented evidence of a current disability of the esophagus, which is an essential element to establish the claim.  Acccordingly, the Board is unable to grant a claim of service connection, and appeal in this matter must be denied.  

The Board is grateful to the Veteran for his honorable service and regrets that a more favorable outcome could not be reached.  


 
ORDER

Service connection for an enlarged esophagus is denied.


REMAND

The Veteran seeks service connection for cataracts.  The record shows that he has a current diagnosis of bilateral subscapular cataracts and that he was exposed to ionizing radiation in service.  As noted above, the U.S. Department of the Air Force provided a dose estimate.  Under 38 C.F.R. § 3.311, the record must be forwarded to the Under Secretary for Health for an opinion as to whether the Veteran's bilateral cataracts are related to such exposure.  

Accordingly, the case is REMANDED for the following action:

1.  Forward the appellant's claim to the VA Under Secretary for Health for an advisory medical opoinion in accordance with 38 C.F.R. § 3.311(c).

2.  The AOJ should then review the record and readjudicate the claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board.








The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs