Citation Nr: 1752751 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-36 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a heart disorder, to include as a result of ionizing radiation, mustard gas, and asbestos exposure. 2. Entitlement to service connection for Bell's palsy, to include as a result of ionizing radiation, mustard gas, and asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to October 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision by the Seattle, Washington Regional Office (RO) of the United States Department of Veterans Affairs (VA). In March 2012, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. In a decision dated in March 2013, the Board remanded the issues. The Board finds compliance with the remand. In the March 2013 Board decision, the issues of service connection for a throat and esophagus disorder were referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. To date, no such action has occurred so the Board again refers these issues to the AOJ. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. There is no persuasive evidence that the Veteran's heart disorder is related to service or any in-service exposures such as ionizing radiation, mustard gas, and asbestos exposure. 2. There is no persuasive evidence that the Veteran's Bell's palsy is related to service or any in-service exposures such as ionizing radiation, mustard gas, and asbestos exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder, to include as a result of ionizing radiation, mustard gas, and asbestos exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311, 3.316 (2017). 2. The criteria for service connection for Bell's palsy, to include as a result of ionizing radiation, mustard gas, and asbestos exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107, (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311, 3.316 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any specific 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). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned with respect to the claims currently on appeal. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The discussion below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Veteran seeks service connection for a heart disorder and Bell's palsy, contending these conditions were caused by hazards to which he was exposed during service. He served as a munitions specialist in the early 1960s. He alleges that he was exposed to radiation in his duties maintaining nuclear bombs. He wore a film badge dosimeter, and on three occasions his dosimeters were taken up because the film showed exposure to radiation. He also alleges he was exposed to mustard gas in his duties moving old containers of mustard gas. Several times he found a container that was leaking and would call emergency ordinance disposal. Finally, he alleges he was also exposed to asbestos in his duties in a building which contained asbestos around parts of the heating system. The regulations pertinent to this decision (38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311, 3.316) were initially provided to the Veteran in the 2010 Statement of the Case. Since he has had adequate notice of the pertinent laws, they will not be repeated here. Initially, the Board notes the Veteran has only asserted his heart disorder and Bell's palsy were caused by hazards to which he was exposed to during service. He has offered no other theory of how his disabilities might be related to service and the record is void of any evidence that his heart disorder or Bell's palsy is directly related to service. Indeed, his service treatment records are silent for any complaints or treatment for a heart condition or Bell's palsy, he claims he never went to sick call for any symptoms during service, and first had problems with his disabilities when he was in his 50s. See Board hearing transcript March 2012. The Board notes the record indicates the Veteran was first diagnosed with a heart disorder in 1998 and Bell's palsy in 2005. See April 12, 1998, private treatment record (noting the Veteran was diagnosed with congestive heart failure and admitted to the hospital); see also April 18, 1998, private treatment record (noting discharge diagnosis of idiopathic dilated cardiomyopathy with biventricular failure, mild coronary artery disease, and nonsustained ventricular tachycardia); see also August 2005 private treatment record (revealing the Veteran presented to the emergency room for weakness of the right side of his face that just began and was diagnosed with right sided Bell's palsy); see also July 2009 VA treatment record (stating the Veteran was admitted into the hospital for another episode of Bell's palsy). Therefore, the Board finds his heart disorder or his Bell's palsy was not factually shown during service and did not manifest to a compensable degree within one year of separation from service. There is also no continuity of symptomatology, as the Veteran's medical records do not indicate he complained of symptoms of a heart disorder or Bell's palsy or sought ongoing treatment prior to his formal diagnoses, as described above. Moreover, post-service medical records are silent as to any complaints of a heart condition until 1998, 33 years after service, and Bell's palsy until 2005, 40 years after service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis, which weighs against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Therefore the Board finds the evidence is against a finding that the Veteran's heart disorder or Bell's palsy is directly related to service. Regarding the Veteran's assertion that his heart disorder and Bell's palsy are related to in-service radiation exposure, the Board notes service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods. Davis v Brown, 10 Vet App 209, 211 (1997); Rucker v Brown, 10 Vet App 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed Veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3309(d). Diseases presumptively service connected for radiation-exposed Veterans are listed under 38 C.F.R. § 3.309 (d)(2). Second, when a "radiogenic disease" first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311 (a)(1). A radiogenic disease is defined at 38 C.F.R. § 3.311 (b)(2). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309 (d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered on a direct basis under 38 C.F.R. § 3.303 (d) in order to determine whether the disease diagnosed after discharge was incurred during active service. Combee v Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board notes the Veteran's service medical records do not contain a DD form 1141, Record of Exposure to Ionizing Radiation. However, his service personnel records reveal he was a member of the munitions handling crew, where he stored, transported, inspected, issued, and renovated munition items within the munitions area. He also participated in nuclear weapons training. Furthermore, a July 2013 memorandum from the Air Force Medical Support Agency notes that based on review of the Veteran's performance reports and duties accomplished, the Veteran may have had some contact with nuclear munitions, but to a lesser degree than those individuals that were responsible for the routine maintenance of nuclear munitions. In lieu of dosimetry monitoring information, a dose reconstruction of the Veteran's potential exposures based on conservative assumptions of contact time with nuclear munitions and the radiation emission rates from munitions that could have been deployed to his assignment locations was performed. "We conservatively estimate that the veteran received less than 660 mrem [a rem is a large dose of radiation, so the millirem (mrem), which is one thousandth of a rem, is often used for the dosages commonly encountered], whole-body dose equivalent. While the veteran had some radiation exposure potential from his duties, the conditions that the veteran has have not been linked to low-level radiation exposure." First, the Board notes that none of the disabilities claimed by the Veteran, a heart disorder or Bell's palsy, are considered either to be presumed under law to have been caused by radiation exposure, or to be radiogenic diseases under the provisions of either 38 C.F.R. § 3.309 or § 3.311. The radiation-presumptive diseases and the radiogenic diseases are all essentially cancers. The claim must then be considered under the provisions of Combee to determine whether the diseases diagnosed after discharge were otherwise related to in-service radiation exposure. Second, the Board finds there is no medical evidence suggesting a link between a heart condition or Bell's palsy and radiation exposure. Instead, the most probative evidence of record is an August 2017 VA medical opinion, in which the examiner reviewed the Veteran's claims file and opined that it was less likely than not that the Veteran's condition of a heart disorder and Bell's palsy were caused by or related to exposure to ionizing radiation. The examiner noted the Veteran was found to have 660 mREM whole-body dose equivalent during his military service and explained that based on scientific literature, "[i]t is estimated that the average person in the US receives approximately 360 mREM whole body equivalent dose each year from background radiation. The veteran is thus estimated to have had roughly twice the normal annual background radiation whole body equivalent dose during his entire military service." Moreover, "[a] nuclear scan has an effective dose of 440 mREM, lower GI imaging series has an effective dose of 405 mREM, and head and body CT has an effective dose of 1100 mREM. Radiation sickness has an acute onset after an effective dose of 75,000 mREM. It can thus be seen that the veteran's total military exposure to ionizing radiation was not clinically significant and was indeed equivalent to the amount of ionizing radiation to which patients are regularly exposed during medical procedures." Furthermore, the examiner noted that medical literature did not ascribe any increased risk of either cardiac disease or diseases of the cranial nerves (i.e., Bell's palsy) to exposure to ionizing radiation even at radiation exposure levels causing the most severe health consequences, which the Environmental Protection Agency (EPA) notes to be exposure to 600,000-1,000,000 mREM. Due to the comprehensiveness of the VA examination, as evidenced by a thorough review of the record and reference to scientific literature, the Board finds this examination report is highly probative in this determination and is afforded significant evidentiary weight. As there is no medical evidence in the record to contradict the August 2017 VA examiner's opinion or any other medical evidence that relates the Veteran's heart disorder or Bell's palsy to in-service radiation exposure, the Board finds the weight of the evidence is against finding in-service exposure to ionizing radiation is related to a current heart disorder or Bell's palsy. Regarding the Veteran's assertion that his heart disorder and Bell's palsy are related to mustard gas, the Board notes the provisions of 38 C.F.R. § 3.316 regarding claims based on chronic effects of exposure to mustard gas and Lewisite, under which certain listed disabilities are presumed to be service-connected for veterans exposed to mustard gas in service. However, initially, the Board notes that neither any heart disorder nor Bell's palsy are listed as any such condition presumed to be service-connected to such exposure. See 38 C.F.R. § 3.316. Furthermore, the evidence does not actually show that the Veteran was exposed to mustard gas in service. In June 2010, the RO received a negative response from the Department of Defense's chemical biological warfare exposure system. The Board acknowledges the Veteran's contentions that he believes that he was exposed to mustard gas while moving old containers; however, the Veteran has not submitted any objective evidence supporting his assertion of in-service mustard gas exposure. While the Veteran is competent to report being exposed to some type of gas during his service training, he is not competent to determine that such gas was mustard gas. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In any case, the Veteran's unsupported and speculative allegations are outweighed by the documentation from an official source reflecting that he was never exposed to mustard gas. Thus, the Board finds that the evidence weighs against any finding that the Veteran was exposed to mustard gas. Even assuming, for argument's sake, that he was exposed to mustard gas in service, there is no evidence such exposure is related to his current heart disorder or Bell's palsy. Indeed, the August 2017 VA medical examiner opined that it was less likely than not that the Veteran's condition of a heart disorder and Bell's palsy were caused by or related to exposure to mustard gas. The examiner explained that based on scientific literature, exposure to even small quantities of mustard gas can lead to death or permanent injury after even short exposure and exposure to mustard gas leads to acute signs and symptoms at the time of exposure with some effects occurring several days after exposure. However, the Veteran never reported touching the substance in the canisters that were leaking, nothing was found in the service treatment records to indicate the Veteran ever presented with complaints, signs, or symptoms of mustard gas exposure, and the Veteran testified that he had no health effects that he attributed to his exposure until he was over 50 years old. Also, "[n]o medical conditions, including a heart condition and/or Bell's palsy, have been described as occurring decades after mustard gas exposure." The Board finds the August 2017 VA examiner's opinion highly probative as the opinion was based on an accurate factual premise of the Veteran's history, review of the entire claims file, and scientific literature. The Board confirms that the Veteran's service treatment records are silent for any complaints or treatment of symptoms of mustard gas exposure and he never testified in his March 2012 Board hearing that he touched the substances in the canisters or that he had any problems with his disabilities prior to his 50s. Moreover, the examiner provided clear and persuasive rationale for the opinion. Thus, the Board finds that the evidence weighs against any finding that a heart disorder or Bell's palsy is related to any mustard gas exposure in-service. Additionally, regarding asbestos-related claims, there is no specific statutory guidance and the Secretary has not promulgated any regulations. VA has issued a circular on asbestos-related diseases, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), which provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions contained in the DVB Circular have since been included in the VA Adjudication Procedure Manual with updates. See M21-1MR, Part IV, Subpart ii, Ch.2, Section C, Topic 9. In this regard, the M21-1MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: fibrosis, the most commonly occurring of which are interstitial pulmonary fibrosis or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum; lung cancer, bronchial cancer, cancer of the gastrointestinal tract, cancer of the larynx, cancer of the pharynx, and cancer of the urogenital system (except the prostate). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining; milling; work in shipyards; insulation work; demolition of old buildings; carpentry and construction; manufacture and servicing of friction products such as clutch facings and brake linings; and manufacture and installation of roofing and flooring materials; asbestos cement sheet and pipe products; and military equipment. The applicable sections of the M21-1MR note that the latency period for asbestos-related diseases varies from 10 to 45 or more years between the first exposure and development of a disease and that the exposure may have been direct or indirect. The guidelines point out that asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. The Board notes the Veteran does not allege any specific event resulted in exposure to asbestos, instead he suggests that his service working in a building brought him into contact with asbestos as it was located around parts of the heating system. As noted above, his service personnel records reveal he was a member of the munitions handling crew, where he sorted, transported, inspected, issued, and renovated munition items within the munitions area. This is not one of the major occupations and he does not perform duties similar in nature to one of the major occupations that the M21-1MR lists as involving exposure to asbestos. The Board cannot assign significant probative value to the Veteran's allegations of in-service asbestos exposure. The M21-1MR does not provide any support for the assertion of asbestos exposure while working as a member of the munitions handling crew. Moreover, the Veteran has asserted working in a building is where there was asbestos but he has not described how or if he actually ingested or inhaled large amounts of toxic asbestos fibers. He has only made general assertions that he was near asbestos that was around parts of the heating system and his service personnel records and service treatment records do not document asbestos exposure. Regardless, the August 2017 VA examiner opined that it was less likely than not that the Veteran's condition of heart disorder and Bell's palsy were caused by or related to exposure to asbestos, explaining that medical and scientific literature supports the conclusion that asbestos left in place around heating pipes was not a health risk and that risk only occurred when the material was removed. The development of a heart disorder and/or Bell's palsy was not considered to be a risk from exposure to asbestos fibers or particles, which the Veteran did not seem to have experienced. The Board finds the VA examiner's opinion highly probative as it was based on an actual factual premise and supported by medical and scientific literature. Moreover, there is no competent or credible evidence to refute the August 2017 VA examiner's conclusions. Thus, the Board finds that the weight of the evidence establishes that the Veteran's current heart disorder and Bell's palsy are not related to any alleged in-service asbestos exposure. The Board recognizes the Veteran's assertion that he has a heart disorder and Bell's palsy related to in-service exposure to ionizing radiation, mustard gas, and/or asbestos. However, the Board finds that he is not competent to offer an opinion as to the etiology of these disabilities, as such a determination requires a level of medical expertise which the Veteran, as a layperson, does not possess. Based on the totality of the evidence, the Board finds that the evidence not does support a finding that the Veteran's heart disorder or Bell's palsy are related to any in-service exposure to ionizing radiation, mustard gas, or asbestos either on a presumptive or direct basis. The Veteran has offered no other theory as to how his heart disorder and Bell's palsy might be related to his service. Therefore, service connection is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a heart disorder, to include as a result of ionizing radiation, mustard gas, and asbestos exposure, is denied. Service connection for Bell's palsy, to include as a result of ionizing radiation, mustard gas, and asbestos exposure, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs