Citation Nr: 1801241 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-03 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for penile cancer, to include as due to ionizing radiation. 2. Entitlement to service connection for throat cancer, to include as due to ionizing radiation. 3. Entitlement to service connection for a thyroid condition, to include as due to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1945 to October 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction of the case has since been transferred to the RO in Detroit, Michigan. In October 2017, the Veteran was afforded a videoconference hearing before the undersigned. A transcript of the hearing is associated with the record. 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. The Veteran has not had penile cancer at any point during the period on appeal. 2. The Veteran had not had throat cancer at any point during the period on appeal. 3. The Veteran's thyroid condition did not have onset in active service and was not caused by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for penile cancer have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for throat cancer have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a thyroid condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process The Board has considered the Veteran's claims and taken appropriate action based on the evidence of record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran's service treatment records could not be located, possibly because they were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis Missouri. See November 2012 VA 21-3101. The RO has determined that the Veteran's service treatment records (STRs) are no longer available and further efforts to obtain the records would be futile. In a case like this in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist a veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). However, this heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection; rather, it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a veteran. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). II. Merits The Veteran contends that service connection is warranted for his thyroid condition, penile cancer, and throat cancer based on exposure to ionizing radiation during service. During his October 2017 Board hearing, the Veteran stated that he was exposed to radiation while working as a military policeman at White Sands missile range located near Alamogordo, New Mexico during active service. Specifically, he claims that he was exposed to radiation during Operation Trinity, first nuclear bomb test, during service. He testified that he believed he was exposed to radiation because he would travel to Ruidoso, a neighboring city, for 15 to 20 days at a time due to "bad storms of dust" during service. 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. §§ 1110 (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; and (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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as malignant tumors and hypothyroidism (endocrinopathies), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Here, as there is no evidence of malignant tumor or hypothyroidism, within one year of the Veteran's separation from service, presumptive service connection is not warranted. Service connection for disabilities that are claimed as due to exposure to ionizing radiation during service can be established through two presumptive paths. One involves claims based on participation in a "radiation risk activity." See 38 C.F.R. § 3.309(d) (2017). Radiation risk activities are defined by regulation. In a May 2013 Radiation Risk Activity Information Sheet, the Veteran stated that he was in a trench and instructed to wear a mask at the time of an explosion, but otherwise provided minimal details about exposure to radiation during active duty service. He reported that he was stationed in Alamogordo, New Mexico. As there is no indication that the Veteran was present during an atmospheric nuclear testing activity, he did not participate in a radiation risk activity pursuant to the regulation. Id. Penile cancer and hypothyroidism are not diseases presumptively associated with radiation exposure in veterans who participated in radiation risk activities. 38 U.S.C. § 1112(c) (2012); 38 C.F.R. § 3.309(d) (2017). Although cancer of the esophagus is a listed disease, as discussed in detail below there is no competent evidence that the Veteran has a current disability of throat cancer. Further, as the Veteran did not participate in a radiation-risk activity, presumptive service connection is not warranted based on application of 38 C.F.R. § 3.309(d) (2017). The other path to establishing service connection for a disability that is claimed as due to exposure to ionizing radiation is if the disability is a "radiogenic disease," that is, "a disease that may be induced by ionizing radiation." 38 C.F.R. § 3.311(b)(2). Cancer is recognized by VA as a radiogenic disease, however, the evidence does not establish, to at least an equipoise standard, that the Veteran was exposed to ionizing radiation during active service. Id. The U.S. Department of Energy submitted a dose estimate form in June 2013 stating that radiation dosimetry studies were unavailable. As such, the Board finds that absent competent evidence that the Veteran was exposed to radiation, VA is not required to forward the claim for consideration by the Under Secretary for Benefits. See Wandel v. West, 11 Vet. App. 200, 204-205 (1998); 38 C.F.R. § 3.311(b)(1) (2017). Although the presumptive paths for establishing service connection are not available for the Veteran's claims, the Veteran's claims could be granted if the three elements of direct service connection are shown by an equipoise standard of evidence. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A. Penile Cancer At the October 2017 Board Hearing, the Veteran claimed that he developed penile cancer in approximately 1946 or 1947 after service and received treatment at a private medical facility in Waterloo, Iowa. He stated that he had operations to remove growths in 1972, 1980, 1986, and 1990. However, he reported that he has been unable to obtain medical records from the Waterloo medical facility because it no longer exists. The Veteran testified that the Waterloo medical facility told him that his records were expunged after 20 years, and that he has submitted all records to the Board. The claims file contains a November 2001 private operative report to perform excision of lesion on the glans penis. A pre- and post-operative diagnosis of lesion on the glans of penis was provided. In a July 2012 letter, the Veteran's private physician indicated that he has been treating the Veteran for carcinoma of the penis and partial penectomy for many years. The private physician stated that the Veteran has been free of any disease for approximately 10 years. VA treatment records from 2013 to 2015 merely list a surgical history of penis skin surgeries. Therefore, it appears that the Veteran's penile cancer resolved prior to his March 2012 Application for Benefits. The Board acknowledges that the Veteran has been diagnosed with penile cancer throughout the years. However, the evidence must show that the Veteran has had the disability for which benefits are being claimed at some point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). The Veteran's penile cancer was diagnosed many years before 2012, the year he filed his claim seeking service connection. In a July 2012 letter, his private treating physician stated that he has been free of any disease for approximately 10 years, indicating that he has not had penile cancer since 2002. Accordingly, the Board finds that the evidence does not demonstrate a current diagnosis of penile cancer, thus, service connection must be denied at this time as the first element necessary for service connection-a current disability-has not been met in this case. See 38 C.F.R. §§ 3.102, 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). B. Throat Cancer At the October 2017 Board Hearing, the Veteran claimed that he developed throat cancer after service in approximately 1946 or 1947. He reported that he had a 1951 throat cancer procedure, and up to six subsequent procedures, at a private medical facility in Waterloo, Iowa. As indicated, the Veteran testified that such private medical records are unavailable. Aside from the Veteran's statements, a review of the claims file contains no complaints of or treatment for throat cancer. As indicated, the Veteran testified that his claims file is complete. Therefore, beyond the Veteran's assertions, there is no competent evidence that he has throat cancer. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997). Because there is no current disability upon which benefits could be granted, his appeal for service connection for throat cancer is denied. See 38 C.F.R. §§ 3.102, 3.303; Brammer, 3 Vet. App. at 223. C. Thyroid Condition At the October 2017 hearing, the Veteran claimed to have a thyroid condition after service in approximately 1946 or 1947. He indicated that he received treatment at the private Waterloo medical facility. As indicated, such private medical records are unavailable. The Veteran has a current thyroid condition diagnosis of hypothyroidism. From March 2011 to September 2012 private treatment records contain an impression of hypothyroidism. February 2015 VA treatment records state that the Veteran has a thyroid disorder and provide a comment of thyroid surgery. That same month, an assessment of hypothyroidism on continued medication was provided. Considering the evidence of records under the laws and regulations set forth above, the Board concludes that that the preponderance of the evidence is against a finding that the Veteran's thyroid condition is directly related to service. The evidence of record is devoid of a date of onset of the disability, but shows only that the Veteran sought treatment starting in 2011, more than 60 years after service separation. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Although the presence of symptoms is not the same thing as seeking treatment for symptoms, this long period of time without evidence of seeking treatment has a tendency to show that he did not have symptoms present continuously since service. The only evidence of record suggesting a link or nexus between the Veteran's current thyroid condition and his military service comes from the Veteran himself. Accordingly, and based on this evidentiary posture, the Board concludes that service connection is not warranted. The Board notes that the Veteran is competent to speak to symptoms and disabilities that are readily observable, as well as to in-service events such as wearing a mask and witnessing a dust storm. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the degree that such symptomatology satisfies the criteria for a diagnosis of throat cancer, continued diagnosis of penile cancer, or a nexus between any condition and service, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render such diagnoses or opinion. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Under the facts of this case, whether he developed throat cancer in 1951, continues to have penile cancer, or whether his conditions are related to service are not simple questions amenable to the opinion of a non-expert. Accordingly, the Board must conclude that the preponderance of the evidence is against the claims, and they are, therefore, denied. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for penile cancer, to include as due to ionizing radiation, is denied. Service connection for throat cancer, to include as due to ionizing radiation, is denied. Service connection for a thyroid condition, to include as due to ionizing radiation, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs