Citation Nr: 1800282	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  15-31 929	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to service connection for schwannoma of the dorsal spine, to include as due to exposure to ionizing radiation.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

B. Lewis, Associate Counsel




INTRODUCTION

The Veteran served on active duty in the U.S. Navy from June 1966 to February 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO denied service connection for schwannoma of the dorsal spine and tinnitus. The RO granted service connection for bilateral hearing loss, with an evaluation of 0 percent, effective June 13, 2012. The Veteran filed a Notice of Disagreement (NOD) in December 2013. The RO issued a Statement of the Case (SOC) in August 2015. In August 2015, the Veteran filed his Substantive Appeal via VA Form 9. Thus, the Veteran perfected a timely appeal of the issues. In his August 2015 VA Form 9, the Veteran elected not to have a hearing before the Board.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.

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).


FINDINGS OF FACT

1. The Veteran was exposed to radiation type DDE-Photon in service during the period of April 1967 to December 1969.

2. The most probative evidence of record shows that the Veteran's currently diagnosed schwannoma of the dorsal spine was incurred due to exposure to ionizing radiation in service.

3.  Resolving reasonable doubt in his favor, the Veteran's currently diagnosed tinnitus manifested during, or as a result of, active military service. 


CONCLUSIONS OF LAW

1. The criteria for establishing service connection for schwannoma of the dorsal spine are met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2. The criteria for establishing service connection for tinnitus are met. 38 U.S.C. §§ 101 (16), (22), (23), (24), 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.6 (a), (c), (d), 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012).  Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VA's duty to notify was satisfied by letters sent in November 2012 and July 2013. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Neither the Veteran nor his representative has alleged that notice has been less than adequate. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). Further, the Board finds that the notice letters comply with the requirements of 38 U.S.C. § 5103 (a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b) were satisfied.

VA has a duty to provide assistance to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c).  The Veteran's military personnel records, service treatment records (STRs), and post-service VA and private treatment records and reports have been obtained.  The Veteran was afforded VA examinations in November 2012 and June 2013. These VA examination reports are adequate because they are based upon consideration of the relevant facts particular to this Veteran's medical history, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The Board finds that all known and available records relevant to the issues decided below have been obtained and associated with the Veteran's electronic claims file.

The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993).

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

II. Service Connection

Legal Criteria

Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (a) (2017).

"To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury; (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Also for chronic diseases, as defined by regulation, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303  (b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303  (b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309 (a)); Savage v. Gober, 10 Vet. App. 488, 495 (1997).

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 "any other cancer."  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).

Schwannoma of the dorsal spine

At the outset, the Board notes that schwannoma is not included among the list of diseases presumptively associated with radiation exposure. See 38 C.F.R. §§ 3.309 (d); 3.311. However, a veteran is not precluded from establishing the necessary linkage for service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has a diagnosis of schwannoma of the dorsal spine. See, e.g., November 2012 VA Examination Report. 

The Veteran submitted medical statements from Dr. C. of The Permanente Medical Group, dated May 2012 which note his medical opinion that the Veteran's schwannoma of the dorsal spine (claimed as tumor of the spine) more likely than not developed as a result of the Veteran's exposure to ionizing radiation. Dr. C. stated that this schwannoma was more likely than not caused by the very high level of radiation exposure the Veteran experienced while in the reactor compartment of a nuclear submarine. 

The Veteran was afforded a VA examination in November 2012. The examiner provided a summary of the Veteran's medical history, stating in pertinent part, that the Veteran had reported chronic back aches for many years which were apparently due to degenerative joint disease. The Veteran had been followed by Kaiser Health Plan, where a number of imaging studies were done for workup. In 2010 an unusual finding was observed, involving T-2 to T-3 of the dorsal spine, which was diagnosed as schwannoma, a tumor which was thought to be a possible resultant of heavy radiation exposure in the 1960s when the Veteran was working on a nuclear submarine and exposed to a heavy dose of radiation. Specifically, the Veteran reported an event that occurred around 1968 when he was asked, in his capacity as a duty officer, to inspect a welded pipe in a nuclear reactor. The Veteran completed this task and was wearing a dosimeter but asserted that the dosimeter was lost prior to analysis for extent of the radiation exposure. The Veteran submitted the aforementioned May 2012 letter from the Kaiser Department of Neurosurgery indicating that it was their opinion that the recent finding of schwannoma of the dorsal spine was more likely than not the result of radiation exposure while in the navy. The examiner noted that conservative management of the condition was being followed with yearly MRIs to assess for stability. The Veteran had not undergone any surgery or special procedures but close follow-ups had been advised for the foreseeable future. See November 2012 VA Examination Report. 

The examiner indicated that the Veteran's C-file was reviewed. Service medical records from 1966 to 1970 were also reviewed and showed no sequellae of radiation exposure at the time but did address the possibility of radiation exposure in the Veteran's occupation in the navy. The examiner opined that the Veteran's schwannoma of the dorsal spine was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in service injury, event, or illness. As rationale, the examiner noted that the Veteran had a history for back and neck pain, which appeared due to degenerative joint disease, although his claim only concerns the occurrence of a schwannoma, tumor of the dorsal spine which was found coincidentally on the aforementioned imaging studies at the Kaiser facility. The Veteran's back and neck symptoms were not considered to be related to the schwannoma at that time but the neurosurgery consultant at Kaiser felt the tumor was related to radiation exposure. As such, the VA examiner concurred and stated that it was his opinion that it was "at least as likely as not that his tumor was related to prior service and should be considered service connected." Id.  

In November 2012, the Veteran submitted a statement in support of the claim in which he elaborated on the aforementioned episode aboard the submarine. The Veteran asserted his belief that the radiation dosage noted in his records was not accurate based on this incident. The Veteran asserted that in approximately 1969 his submarine was in the Norfolk Naval Shipyard for an overhaul. Shipyard personnel asked the Veteran, who was the duty officer at the time, to inspect a weld on some primary piping in the reactor compartment. The Veteran stated that he thought the request odd but accommodated the shipyard personnel who had made the request. The Veteran stated that he inspected the primary piping that carries the water that flows through the reactor core, noting that such water is highly radioactive and that the insides of these pipes frequently are covered with extremely radioactive deposits, which were referred to as "crud". He further noted that it was rare for crew members to see the inside of the reactor compartment. See November 2012 Statement in Support of Claim. 

The Veteran was properly fitted with an anti-contamination suit and had a proper dosimeter with an attached film badge. The Veteran asserted that he inspected the pipe, which he had expected to be closed. Instead, he asserted that the pipe was open to allow him to see the effects of the weld on the inside of the pipe. He stated that the inside of the pipe was covered with black crud. After finishing his inspection, the Veteran asserts that the civilian sentry who was supposed to retrieve his film badge accidentally dropped the film, contaminating the results. The Veteran asserts he was later reprimanded for dropping the film badge but did not implicate the sentry who dropped it, as the Veteran was leaving the service soon thereafter. Id. 

In June 2013, the Veteran was again afforded a VA examination. The examiner was asked to opine on whether the Veteran's schwannoma of the dorsal spine was incurred in or caused by the fibrous nodules at the lumbar spine area noted on his January 1970 separation examination. The examiner indicated that she had reviewed the Veteran's claims file. She opined that the Veteran's claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in service injury, event, or illness. As rationale, the examiner noted that she considered service medical records, private medical records, military service and VA medical records in arriving at her conclusion. She stated that the event or conditions that are as likely as not responsible for the etiology of the schwannoma was the radiation exposure the Veteran experienced in military service. This rationale was based upon the records from Permanente Health Group, the Veteran's DD214, and the November 2012 VA examination. See June 2013 VA Examination Report. 

A request was sent to the Department of the Navy Health Center in August 2013, to confirm the Veteran's exposure to ionizing radiation. The response received in October 2013 showed a dosage reading of 00.092 rem of DDE-Photon radiation. The Veteran's DD Form 1141 showed an accumulated total dose of 0.0 for April 1967 to October 1967. In October 2013, the RO sent a request to the Under Secretary of Health for a medical opinion on the relationship between the Veteran's exposure to ionizing radiation and his schwannoma of the dorsal spine. 

The Under Secretary's opinion cited the Health Physics Society position statement that "in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitive estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources. There is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are too small to be observed or are nonexistent." The Under Secretary subsequently opined that because the Veteran's radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it was unlikely that the Veteran's schwannoma of the dorsal spine could be attributed to his radiation during service. 

In the Veteran's December 2013 Notice of Disagreement, the Veteran asserted that the RO had overlooked his lay statements about the aforementioned incident aboard the submarine when the Veteran was exposed to a large quantity of radiation. See December 2012 Notice of Disagreement. 

The Board finds the May 2012 opinion from the Permanente Group and the VA Opinions in November 2012 and June 2013 to be highly probative as to the issue of causation because they are unequivocal in their conclusions, based upon a complete review of the Veteran's claims file, and supported by rationale. See Nieves-Rodriguez, supra.  The examiners took due notice of the Veteran's lay contentions in forming their opinions and noted his clearly documented exposure to radiation. While there is an issue as to exactly how much radiation the Veteran was exposed to in service, the record is clear that exposure occurred. The Board acknowledges the Under Secretary's opinion which provides a negative nexus. While the opinion incorporated specific radiation readings from the Veteran's claims file, there was no indication that the author of this opinion accounted for any of the Veteran's lay statements about the alleged incident in 1968/1969 when the Veteran contends he was exposed to a large quantity of radiation which was not accurately reflected in the record. Additionally, the Under Secretary's opinion details studies that speak in general terms as to the known health effects of certain ranges of radiation exposure. In some circumstances, such general medical studies can constitute competent medical evidence. However, while the studies cited by the Under Secretary address known health effects from radiation exposure of 5-10 rem, it contains little analysis specific to the Veteran's case, other than to assert that he was exposed to less than this amount. In contrast, the medical opinions provided by Dr. C. of the Permanente Medical Group and the two VA examiners were specific to the Veteran and attributed his schwannoma of the dorsal spine to his established radiation exposure. As such, the Board finds that the information reflected in the Under Secretary's opinion is not as probative of the specific medical questions at issue in this appeal, and is outweighed by the professional opinions of Dr. C. and the VA examiners. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). 

In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for schwannoma of the dorsal spine, secondary to in-service exposure to ionizing radiation is warranted. Gilbert, supra.

Tinnitus

In a June 2012 letter, C.P., indicated that the Veteran reported constant tinnitus in both ears but offered no nexus opinion as to the relationship between the Veteran's tinnitus and his in-service noise exposure. 

The Veteran was afforded a VA audio examination in November 2012. The examiner noted that the Veteran reported experiencing a high pitched noise in his ears, stating that it was probably there all of the time but that he did not normally pay attention to it. The examiner noted that the Veteran said "he first noticed it in college probably." The examiner therefore opined that the Veteran's tinnitus was at least as likely as not (50 percent probability or greater) due to a known etiology. The examiner stated that this opinion was based solely on the Veteran's report of tinnitus first being noticed in college. See November 2012 VA Audiological Examination. 

In a December 2013 letter, Dr. D.W. of The Permanente Medical Group wrote that the Veteran's tinnitus was undoubtedly the result of noise trauma that the Veteran suffered in service having been exposed to gun fire and engine noise over the course of his four years in service. 

In his December 2013 Notice of Disagreement, the Veteran asserted that he was never given any hearing tests where he was asked about ringing in his ears or tinnitus. He asserted that throughout his military career, he was never asked about tinnitus, including on separation. See December 2013 Notice of Disagreement. 

In his August 2015 VA Form 9, the Veteran addressed the November 2012 examiner's contention that this condition began in college by explaining that he was in ROTC and military training at the same time and that the large guns on the ship, in conjunction with the engine room noise caused his condition. See August 2015 VA Form 9. 

Given the inherently subjective nature of tinnitus, the Veteran is uniquely situated to competently identify and report on the onset and duration of ringing in the ears. A lay person is competent to provide an opinion on the presence of recurrent ringing in the ears since service, as the symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran testified that he experienced ringing in his ears in service and that he experienced such ringing ever since service, and finding that the veteran was competent to so testify because ringing in the ears was capable of lay observation). 

The VA examiner rested the opinion on the date of onset alleged by the Veteran, which the Veteran disputes. The VA examiner did not suggest that there was a sound medical basis for finding that the Veteran's claimed tinnitus was otherwise not consistent with military noise exposure. Thus, the medical opinion suggests that if the Veteran's statements of onset in service were accepted as fact, then a nexus would be substantiated. There is also the positive private opinion of record, and service connection is in effect for bilateral hearing loss. The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). The Board finds that reasonable doubt should be resolved in favor of the Veteran. Accordingly, the Board finds that service connection for bilateral tinnitus is warranted.

      (CONTINUED ON NEXT PAGE)





ORDER

Entitlement to service connection for schwannoma of the dorsal spine as due to exposure to ionizing radiation is granted. 

Entitlement to service connection for tinnitus is granted.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs