Citation Nr: 1752686 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 17-00 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating prior to October 7, 2016, and a rating in excess of 50 percent thereafter, for bilateral hearing loss. 2. Entitlement to service connection for urination problems, including as due to in-service radiation exposure. 3. Entitlement to service connection for a nose condition, including as due to in-service radiation exposure. 4. Entitlement to service connection for a brain condition, including as due to in-service radiation exposure. 5. Entitlement to service connection for a back condition, including as due to in-service radiation exposure. 6. Entitlement to service connection for peripheral neuropathy, bilateral lower extremities, including as due to in-service radiation exposure. 7. Entitlement to service connection for cataracts, including as due to in-service radiation exposure. 8. Entitlement to service connection for hepatitis C, including as due to in-service radiation exposure. 9. Entitlement to service connection for a heart disorder, also characterized as coronary artery disease (CAD) with congestive heart failure and automatic implantable cardioverter-defibrillator (AICD), including as due to in-service radiation exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c)(2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from July 1951 to April 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, and St. Petersburg, Florida. At one point the Veteran's claims were transferred to the centralized processing unit for radiation claims at the Jackson, Mississippi RO. Nonetheless, the St. Petersburg, Florida RO remains the Agency of Original Jurisdiction (AOJ). The Veteran also appealed the denial of entitlement to Special Monthly Compensation (SMC) based upon the need for aid and attendance. By a June 2015 rating decision, the RO awarded that benefit. Thus, that claim is no longer on appeal. With regard to the Veteran's appeal of the rating assigned for bilateral hearing loss, the October 2012 rating decision on appeal awarded service connection and assigned noncompensable rating. The Veteran perfected an appeal as to the rating assigned. In November 2016, the RO issued a rating decision awarding a 50 percent evaluation for bilateral hearing loss, effective October 7, 2016. As 50 percent is not the highest possible rating for this disability and the Veteran has not indicated satisfaction with the rating assigned, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Moreover, the Veteran filed a claim for service connection for a brain disorder in December 2011. By a subsequent RO decision, that issue was expanded to include service connection for dementia, then denied by February 2015 rating decision. The Board has considered that issue accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of service connection for a brain disorder, peripheral neuropathy, and a heart disorder, and an increased rating for hearing loss, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The conditions of a back disorder, urination problems, hepatitis C, and cataracts are not etiologically related to service, including to the Veteran's already confirmed radiation exposure. 2. The Veteran's deviated septum pre-existed service. However, neither a deviated septum nor other nasal disorder were aggravated during service. CONCLUSIONS OF LAW 1. The criteria are not met to establish service connection for urination problems, including as due to in-service radiation exposure. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311 (2017). 2. The criteria are not met to establish service connection for a back condition, including as due to in-service radiation exposure. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311 (2017). 3. The criteria are not met to establish service connection for hepatitis C, including as due to in-service radiation exposure. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311 (2017). 4. The criteria are not met to establish service connection for cataracts, including as due to in-service radiation exposure. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.311 (2017). 5. The criteria are not met to establish service connection for a nose condition, including as due to in-service radiation exposure. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board will proceed to a decision on these claims. Generally Applicable Law on Claims for Service Connection Under applicable VA law, direct service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Service connection also may be granted for disease diagnosed after discharge where 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 or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999). If there was chronic disease in service, reappearance at any later date is service-connected, unless clearly due to an intercurrent cause. If not chronic, there must be continuity of symptomatology to link in-service disability to post-service condition. See 38 C.F.R. § 3.303(b). But see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology principle limited to where involving those diseases already listed as "chronic" under 38 C.F.R. § 3.309(a)). Secondary service connection is available for a condition proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Secondary service connection also applies when a service-connected disability has chronically aggravated a nonservice-connected disability. See 38 C.F.R. § 3.310(b). Whether to award service connection depends on review of all relevant evidence, medical evidence and lay statement, and the evaluation of its competency and credibility. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran argues that his claimed disabilities are due to his in-service radiation exposure. First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. 38 C.F.R. § 3.309(d) (2017). A "radiation-exposed veteran" is one who participated in a radiation-risk activity. 38 C.F.R. § 3.309(d)(3)(1). "Radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309 (d)(3)(ii)(A). The term "onsite participation" means during the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(A). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The Veteran in this case is confirmed as participating in Operation UPSHOT-KNOTHOLE from January 12, to March 23, 1953, which had an operational period for the purposes of radiation exposure from March 17, 1953, through June 20, 1953. 38 C.F.R. § 3.309(d)(3)(v)(I). The second avenue of recovery is found under 38 C.F.R. § 3.311(b)(2). This provision provides that other listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed veteran may be service-connected if the VA Undersecretary 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. 38 C.F.R. § 3.311 does not provide presumptive service connection for radiogenic disease, but provides special procedures to help a Veteran prove his claim on a direct basis. See Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). 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 as specified in 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and it is contended the 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 or doses. 38 C.F.R. § 3.311(a)(1). When dose estimates provided are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. 38 C.F.R. § 3.311(a)(2). When it has been determined that a Veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the VA Under Secretary for Benefits for further consideration. The Under Secretary for Benefits is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health; if, after this consideration, the Under Secretary for Benefits determines that there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the RO in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311. If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if he suffers from a "radiogenic disease" and claims exposure to ionizing radiation in service. 38 C.F.R. § 3.111(b). As to the third avenue of recovery, the Veteran may also establish service connection directly under 38 C.F.R. § 3.303. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The fact that the Veteran is not entitled to presumptive service connection as a result of exposure to ionizing radiation under 38 C.F.R. §§ 3.309 and 3.311 does not preclude an evaluation as to whether the Veteran is entitled to service connection under 38 C.F.R. § 3.303. Service connection on a direct basis is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Merits of Claims - Urinary System, Back Disorder, Hepatitis C, Cataracts With regard to the Veteran claims for several of his conditions that do not appear to have a reasonable likelihood of linkage to the Veteran's military service, including but not limited to ionizing radiation exposure therein, the Board must deny these claims. The Veteran based on his participation in Operation UPSHOT-KNOTHOLE for the period March 17, 1953 through June 20, 1953 is considered to have been a radiation exposed veteran, for purposes of application of 38 C.F.R. § 3.309(d)(3). Therefore, radiation exposure is clearly conceded, and the question turns to whether the Veteran has one of the identified disorders that may be presumed service-connected on this grounds (per regulations already identified), or otherwise is capable of being linked to radiation exposure through competent medical evidence. Cancers of the urinary tract may be presumed service-connected. However, the Veteran has not been diagnosed with a cancer of the urinary tract, other than prostate cancer, as discussed below. Liver cancer is also presumptively associated with radiation exposure. The Veteran has not been diagnosed with liver cancer and hepatitis C is not among the diseases and conditions presumptively associated with radiation exposure. Back disabilities are not presumptively associated with radiation exposure in 38 C.F.R. § 3.309 (d) and are not radiogenic diseases under 38 C.F.R. § 3.311. A VA eye examination of October 2016 indicated that the Veteran manifested age-related nuclear sclerotic cataracts, not posterior subcapsular cataracts. The latter would fall into the category of a radiogenic disease, but age-related cataracts do not. This is the case applying both provisions of 38 C.F.R. § 3.309 and 38 C.F.R. § 3.311. Nor is there competent medical evidence linking the same to radiation exposure, per application of Combee. Indeed, a condition of the back as here is generally orthopedic in nature (not shown as a separate neurological disability as well) and would not reasonably be expected to be caused by systemic exposure to radiation. The same would be true of hepatitis C, a disease process of infectious etiology. Likewise, there is no indication or general suggestion that urinary disability, given that it was claimed in this instance as urinary problems, actually had any connection to radiation. Whereas prostate cancer may be included amongst presumptively radiation related illness, the Veteran's indicated urinary obstruction is considered due to benign hypertrophy of the prostate, not prostate cancer. Whereas the Veteran was later diagnosed with prostate cancer, it is clearly indicated as on August 2014 VA examination that his voiding issues preceded the diagnosis of prostate cancer. It follows, that the Board accepts as sufficient the competent July 2017 VA medical opinion that each of these claimed condition was less likely as not related to active military service. The stated rationale was that "there is neither evidence in the medical literature, consensus in the medical community or evidence in this specific case that supports a causal/aggravation relationship between these conditions or service." There is also no objective indication otherwise of a causal relationship to the Veteran's active military service, given that none of these conditions were notated or documented therein by way of symptoms, diagnosis or treatment. Nor is there reported problem therein. Nor was there a continuity of symptomatology since service, another means upon which may be utilized to establish causation. See 38 C.F.R. § 3.303(b) (2017). Moreover, the earliest indication the Board has of any clear depiction and diagnosis of these problems, originates from VA medical records on or around year 2010. Consequently, there is no objectively shown theory or otherwise plausible grounds upon which to show that the claimed conditions were incurred in military service. Accordingly, the competent medical evidence disfavors these claims. The Board has given due consideration to the Veteran's lay assertions. He is certainly competent to aver as to the presence of observable symptoms. However, given the clearly required expert medical knowledge when dealing with radiation claims, not to mention the significant time interval since service and claimed conditions manifested, the best analysis on the subject comes from medical professionals as opposed to the Veteran in this case, as his etiology opinions are not competent. The preponderance of the evidence unfavorable, the claims are denied. VA's benefit-of-doctrine has been considered, but does not apply under these circumstances. Merits of Claim Based on In-Service Aggravation - Nasal Condition Of specific application to the claim involving a nose or nasal condition, is the principle that a disability pre-existing military service may be adjudicated service-connected on the grounds of aggravation therein. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). Service connection also is available for a preexisting condition provided it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). As notated upon service entrance examination in July 1951, the Veteran had a slight deviated septum, to the right side. The question becomes whether that condition was measurably aggravated in service. Having reviewed the evidence, the Board must conclude that this was not the case. On VA examination in 2012, the Veteran reported that a nose condition was treated during the military service (this fact not objectively confirmed by Service Treatment Records (STRs), which themselves are incomplete). The Veteran reported that his nose had been running for the previous two months. When asked if that was the problem he had in the military, he said it was. He indicated having been assigned to engineering to set up a test of nuclear bomb. He suspected that the nuclear radiation must have caused some problem in his nose since he had to breathe the dust when sat up and watched the nuclear explosion. He believed something must be wrong with him. He wanted a test for radiation disease. He reported he was in Yucca Flats for 2.5 months and was covered with dust the whole time. The diagnosis was deviated nasal septum, and non-allergic rhinitis. The opinion given by the VA examiner was: The veteran has a clinical mild nasal deviation that was not noticed on x-ray. It is not obstructive. He had dry nasal mucosa that was not inflamed. The nose exam was normal. There is no documentation of a recurring rhinitis while on active duty. He may have a recurring rhinitis that was asymptomatic today. There are no signs of tumors that could be associated with radiation exposure. On more recent VA examination in July 2017, in response to the prior Board remand requesting the same opinion, it was stated that the Veteran's nose condition as shown to be a deviated septum was not found to be worsened by review of records, runny nose not being a symptom of deviated septum. Further noted were no "tabbed" STRs, also negative separation exam or evidence of continuity or aggravation. The Board finds this opinion well-supported, and, that it constitutes an accurate statement and synopsis of the actual record. There was not indicated aggravation therein of pre-existing disability. There also is no competent finding otherwise to provide that a nasal disorder originated as the consequence of radiation exposure, above and beyond a theory of in-service aggravation, this possibility of radiation result being discounted by previous VA medical opinions for the reasons indicated. Accordingly, the claim must be denied. ORDER Service connection for urination problems, including as due to in-service radiation exposure, is denied. Service connection for cataracts, including as due to in-service radiation exposure, is denied. Service connection for a back condition, including as due to in-service radiation exposure, is denied. Service connection for hepatitis C, including as due to in-service radiation exposure, is denied. Service connection for a nose condition, including as due to in-service radiation exposure, is denied. REMAND Given that there is at least one opinion within the VA Medical Center (VAMC) treatment records, from October 2016, indicating that the Veteran's peripheral neuropathy may be related to service, a more informed medical opinion should be obtained that specifically considers the circumstances of this case. Similarly, an opinion is needed on any condition of the brain this as closely related area, and the heart given obviously the sufficient complexity of a cardiovascular disorder that it could legitimately be affected by radiation. At minimum, an opinion is required that addresses the Veteran's long-term medical history. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, given the relative severity of any hearing loss disorder rated at 50 percent, as here, it is reasonable to assume there would be some notable impact upon ordinary usage, daily life, and/or work capacity. To document the same in sufficient detail, the Veteran should undergo audiological re-examination. See Martinak v. Nicholson, 21 Vet. App. 447, 453-54 (2007). Accordingly, these claims are REMANDED for the following actions: 1. Schedule the Veteran for an examination with a qualified clinician The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination. With regard to any diagnosed (1) heart conditions, (2) peripheral neuropathy, and (3) brain disorder (diagnosed at one point as dementia and/or Alzheimer's disease), the examiner should determine whether it is at least as likely as not (50 percent or greater probability) that said conditions were incurred due to the Veteran's already verified radiation exposure in service in proximity to nuclear testing. In so doing, take into account the degree of initial exposure, initial onset of symptoms, and subsequent history. In addition to review of pertinent medical literature, the examiner's attention is called to the prior 2017 VA medical opinions on file. Provide a detailed rationale for all conclusions reached. 2. Schedule the Veteran for an examination with an audiologist. The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination. The examiner is also requested to directly comment upon the effects of the Veteran's hearing loss on occupational functioning and daily activities. A detailed inquiry on this subject is requested. 3. Review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then readjudicate the matter on appeal based upon all evidence of record. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs