Citation Nr: 1803468 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-31 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals status post resection of cancer of the thymus, claimed as due to exposure to non-ionizing radiation and herbicides. REPRESENTATION Appellant represented by: Drew N. Early, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In August 2015, the Veteran testified during a hearing before a Veterans Law Judge. A transcript of the hearing is of record. In January 2016, the Board remanded this matter to the agency of original jurisdiction (AOJ) for further development. After accomplishing further development, the AOJ continued the denial of the claim (as reflected in the September 2017 supplemental statement of the case (SSOC)) and returned this matter to the Board for further appellate consideration. The law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017). In November 2017, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer employed by the Board and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. He was instructed that if he did not respond to this letter within 30 days, the Board would assume that he did not wish to have another hearing before a Veterans Law Judge currently employed by the Board. The Veteran has not responded to the letter and the 30 day time period has expired. Thus, the Board will proceed with the matter on appeal. FINDING OF FACT The evidence is evenly balanced as to whether the Veteran's current diagnosis of thymus cancer is etiologically related to exposure to non-ionizing radiation during active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for cancer of the thymus are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Criteria and Analysis The Veteran contends that he has a current diagnosis of cancer of the thymus that is related to his active military service. Specifically, he asserts that his thymus cancer was caused by exposure to non-ionizing radiation and herbicide agents while stationed aboard the USS Coral Sea. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In assessing the Veteran's service connection claim for residuals of cancer of the thymus, the Board must determine whether the Veteran has the claimed disability. The Veteran's private treatment records document that the Veteran was diagnosed with thymus cancer in November 2006. He underwent thymoma resection in November 2006. An August 2015 letter from a private physician reveals that the Veteran was diagnosed with thymic cancer in 2006 and he has paralysis of the left phrenic nerve, unilateral vocal cord paralysis (transient), and chronic pulmonary disease/dysfunction due to surgery for thymic cancer. Thus, the Board finds that the Veteran has met the current disability requirement. The Veteran's service treatment records do not show any complaints of, treatment for or a diagnosis of thymus cancer during active military service. The first medical evidence of a diagnosis of cancer of the thymus was in 2006. The Board notes that the Veteran asserts that he exposed to non-ionizing radiation while serving on board the U.S.S. Coral Sea and as a result of aircraft radar bore sighting. See July 2009 VA Form 21-526. In a Radiation Risk Activity Information Sheet received in February 2010, the Veteran reported that he was in Navy Squadron VAW-13, VAQ 130 Det. 43 and VAQ-135; that he performed ECM work and served in a supply capacity where he worked in electronic storerooms and delivered parts to different airplanes on the ship; that he was also involved in inventory of all storerooms on the U.S.S. Coral Sea; and that he knows he was exposed to radar bore sighting on the hangar deck many, many times, though no one ever cautioned about radiation problems or exposure. In a June 2011 VA Form 21-4138, the Veteran also reported that he was constantly exposed to radiation while working on radar. In August 2015, the Veteran testified before the Board that he was attached to the F-6 division on the ship, which was the supply division, aviation supply. He worked in a storeroom right below the flight deck, where all the electronic gear was stowed, and he would help transfer that gear to the planes on top or planes down on the hangar deck, depending on their need. The Veteran indicated that because of those duties, he was there with radar equipment, handing it to the people and standing by when they were what they call bore sighting. He asserted that they would aim the front of the radar at a target to bring the signal in from the cockpit so the pilot would know where his radar was shooting. The Veteran also testified that he was also involved with other communication and electronics gear that put out electromagnetic radiation to include "cloaking" devices. He explained that he would wait to make sure the parts worked correctly and therefore, he was exposed non-ionizing radiation from these devices. The Veteran's DD Form 214 reveals that his military occupational specialty was supply clerk. The Veteran's service personnel records shows that the Veteran served on the USS Coral Sea from August 1967 to February 1968 near the Republic of Vietnam. A performance evaluation for the period from October 1968 to April 1969 shows that while the Veteran was on the USS Coral Sea he was assigned to the Rotable Pool Section of the Aviation Stores Division. His job consisted of receiving high priority, fast-moving, repairable components. The Veteran's service personnel record also documents that he was deployed on the USS Coral Sea with the Tactical Electronic Warfare Squadron in April 1969. The Board finds that the lay statements from the Veteran of being exposed to non-ionizing radiation are credible and would be consistent with the circumstances of his service. 38 U.S.C.. § 1154(a); 38 C.F.R. 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). With respect to whether there is sufficient medical evidence to establish an etiological link between the Veteran's current residuals of thymic cancer and exposure to non-ionizing radiation during active military service, the claims file contains a positive medical opinion. In this regard, in August 2015, a private physician provided the medical opinion that more likely than not, the proximate cause of the development of cancer of the thymus by the Veteran was adverse synergy between his concomitant exposure to radiation (reportedly ionizing and non-ionizing) and Agent Orange while in the Navy aboard the USS Coral Sea. The physician explained that although thymic tumors are the most common tumors in the anterior mediastinum, overall they are rare. The physician also noted that the Veteran is Caucasian and this type is cancer is more common in Asians and Pacific Islanders and less common in Caucasians. The mere rarity of thymic cancer is persuasive that specific environmental agents were a proximate cause of the development of the Veteran's thymic cancer. The physician noted that some medical studies have suggested a possible link with exposure to radiation to the upper chest area. The Board finds that the August 2015 private physician opinion is probative on the question of whether the Veteran's residuals of thymic cancer is caused by or related to, in part, his exposure to non-ionizing radiation during active military service as he provided a clear explanation in support of his medical opinion. The private physician discussed specific medical literature and studies that indicate a relationship between exposure to non-ionizing radiation and thymus cancer and he provided an analysis relating the medical studies to his medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, there is no medical opinion to the contrary in the claims file. Based on the foregoing, the Board concludes that the competent medical opinion evidence on the question of whether the Veteran's residuals of thymic cancer are etiologically related to, in part, his in-service exposure to non-ionizing radiation is at least evenly balanced, warranting application of the benefit-of-the-doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In light of the evidence discussed above, and with resolution of reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for residuals of thymic cancer are met. ORDER Entitlement to service connection for residuals of cancer of the thymus is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs