Citation Nr: 18155272 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 06-33 132 DATE: December 4, 2018 ORDER Service connection for lung cancer, to include as due to exposure to ionizing radiation, is denied. Service connection for thyroid cancer, to include as due to exposure to ionizing radiation, is denied. Service connection for bilateral cataracts, to include as due to exposure to ionizing radiation, is denied. Compensation under 38 U.S.C. § 1151 for lung cancer is denied. Compensation under 38 U.S.C. § 1151 for thyroid cancer is denied. FINDINGS OF FACT 1. A preponderance of the evidence is against finding that the Veteran’s lung cancer is due to service, including exposure to ionizing radiation; lung cancer is not shown in service or within the initial post separation year, and has not been linked by competent evidence to service. 2. A preponderance of the evidence is against finding that the Veteran’s thyroid cancer is due to service, including ionizing radiation; thyroid cancer is not shown in service or within the initial post separation year, and has not been linked by competent evidence to service. 3. The Veteran’s bilateral cataracts did not have its onset in service and is not otherwise related to service. A preponderance of the evidence is against finding that the Veteran’s cataracts is due to service, including ionizing radiation; cataracts is not shown in service or for decades after service separation. 4. The preponderance of the evidence is against finding that the Veteran’s lung cancer was a qualifying additional disability for 38 U.S.C. § 1151 purposes; lung cancer was not caused or aggravated by VA medical care to include any failure to timely diagnose and/or treat the cancer. 5. The preponderance of the evidence is against finding that the Veteran’s thyroid cancer was a qualifying additional disability for 38 U.S.C. § 1151 purposes; thyroid cancer was not caused or aggravated by VA medical care to include any failure to timely diagnose and/or treat the cancer. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for lung cancer, to include as due to ionizing radiation, for accrued benefits purposes, have not been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.311. 2. The criteria for establishing entitlement to service connection for thyroid cancer, to include as due to ionizing radiation, for accrued benefits purposes, have not been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.311. 3. The criteria for establishing entitlement to service connection for bilateral cataracts, to include as due to ionizing radiation, for accrued benefits purposes, have not been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.311. 4. The criteria for compensation under 38 U.S.C. § 1151 for lung cancer are not met. 38 U.S.C. §§ 1151, 5107(b), 5121A; 38 C.F.R. § 3.361. 5. The criteria for compensation under 38 U.S.C. § 1151 for thyroid cancer are not met. 38 U.S.C. §§ 1151, 5107(b), 5121A; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a). This matter initially came before the Board of Veterans Appeals (Board) on appeal from a November 2005, August 2006, and August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which the RO denied the benefits sought on appeal. The appellant is the surviving spouse of a Veteran who had active service from July 1968 to June 1970 and who died in July 2009. The appellant has been substituted as claimant in these matters. The Board remanded the case for further development in January 2014. The requested development has been completed; and the case has been returned to the Board for further review. Pursuant to the January 2014 Board remand, the RO followed the appropriate procedures for developing a claim based on exposure to ionizing radiation in service. A dose estimate was obtained and a medical opinion elicited from the Under Secretary of Health, written by a health physicist and reviewed by the Deputy Chief Consultant of Post Deployment Health Service. Furthermore, a medical opinion was also obtained to develop the appellant’s 38 U.S.C. § 1151 claims. The Board finds substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection 1. Entitlement to service connection for lung cancer, to include as due to exposure to ionizing radiation. 2. Entitlement to service connection for thyroid cancer, to include as due to exposure to ionizing radiation. 3. Entitlement to service connection for bilateral cataracts, to include as a result of exposure to ionizing radiation. Issues 1-3. The appellant contends that the Veteran’s lung cancer, thyroid cancer, and bilateral cataracts were due or a result of in-service exposure to ionizing radiation. The appellant alleges that the Veteran was exposed to ionized radiation in service between 1968 and 1970. Specifically, the appellant argues that while in service the Veteran was exposed to radiation multiple times. An affidavit by the Veteran reflects a history of exposure from duties such as inspecting and transporting Atomic Demolition Munition (ADMs); he stated that: I believe that I was exposed to radiation in the following ways: Within less than two months after my arriving at Ft. Richardson, I started my ADM (nuclear weapon) training. We referred to the ADMs as “suitcase” nukes. The Army was training me to eventually become one of the soldiers who along with another soldier would carry the ADM into a location and detonate it. During my classroom training we handled only dummy ADMs. However, for approximately fourteen months and on average of about one week each month we would go out to the site where the actual ADMs were stored. For each week we did this, we would spend three or four days out of that week at the site working with and around the ADMs. When we arrived at the site and before we could enter the radiation area of the Quonset hut near where the ADMs were stored, we were required to stop and pick up our pocket dosimeter badges that had our names on them. See March 2009 Affidavit The Board concludes that the preponderance of the evidence is against finding that the Veteran was a radiation exposure veteran within the meaning of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d); and that, to the extent that the Veteran had been exposed to ionizing radiation, it did not cause his cancers or cataracts.38 C.F.R. § 3.311(b), (c). The Board further concludes that the preponderance of the evidence is against finding that the Veteran’s lung cancer, thyroid cancer, or cataracts had their onset in service or are otherwise related to service. Also, cancer is not shown within the initial post separation year. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for disability based on exposure to ionizing radiation can be demonstrated by three different methods. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected when they occur in “radiation-exposed veterans.” 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). This category of “radiation-exposed veterans” includes those Veterans who participated in a “radiation-risk activity.” “Radiation-risk activity” is defined to mean: 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 in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation of forces of Hiroshima or Nagasaki during the period August 6, 1945, and ending on July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky; Portsmouth, Ohio; and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. 38 C.F.R. § 3.309(d)(ii). In this case, it is not contended nor is it shown that the Veteran was a “radiation exposed veteran” as defined by these provisions. Second, “radiogenic diseases” may be service-connected, provided that certain conditions are met, pursuant to 38 C.F.R. § 3.311. To consider a claim under section 3.311, the evidence must show the following: (1) the Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a period specified by the regulation. 38 C.F.R. § 3.311(b). If any of the foregoing three requirements has not been met, service connection for a disease claimed as secondary to exposure to ionizing radiation cannot be granted under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311(b)(1)(iii). For purposes of 38 C.F.R. § 3.311, the term “radiogenic disease” means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the relevant evidence, the Veteran’s service records reveal that he was an Atomic Demolition Munitions Specialist in Alaska from November 1968 to June 1970. Post-service treatment records reveal the Veteran was diagnosed with cataracts in March 1996, thyroid cancer in October 2000, and lung cancer in May 2009. There is no family history or exposure to any other known carcinogens found in the record. The Veteran stated that he smoked a pack of cigarettes per day, but in the recent years increased to a pack and a half to two packs. VA outpatient treatment records show he was diagnosed with “tobacco use disorder” from 2005. The Veteran died in July 2009 and the death certificate lists small cell lung cancer as the immediate cause of his death. Lastly, no other cause of death is listed or any substantial and material contributing factor. The Army Dosimetry Center found that the Veteran did not have an occupational exposure history and that there was no record of the Veteran being occupationally exposed to ionizing radiation while in military service. The Army Dosimetry Center is the U.S. Army’s repository for historical records of occupational radiation dosimetry. It maintains histories of exposures which have occurred since mid-1954. In a letter to the VA, the Director of Occupational Health Sciences stated that: [d]osimetry is issued to individuals who, in the performance of their duties, would reasonably be expected to be exposed to 10 percent of the allowable occupational limits for radiation. The fact there are no records of the [Veteran] being enrolled in a monitoring program may be considered evidence that he was not expected to receive a significant exposure to ionizing radiation while performing his duties. See March 2008 Department of the Army Letter. In other words, when a service member is not expected to be exposed to radiation exceeding 1/10 of the annual limit of 5 rem per year (0.5 rem), monitoring is not required. Furthermore, the Under Secretary of Health, in agreement with the Army Dosimetry Center, decided to assign a radiation dose because the Veteran claimed to be exposed to radiation. Giving the Veteran the benefit of the doubt, the Under Secretary of Health assigned a dose of 1.5 rem (0.5 rem per year x 3 calendar years of service). However, even with a dose of 1.5 rem, the Under Secretary of Health found that “it is unlikely that [the Veteran’s] lung cancer, thyroid cancer and/or cataracts were caused by exposure to ionizing radiation during military service.” See February 2018 Radiation Review Memorandum. In its rationale, it included a position statement from the Health Physics Society, revised May 2016, that stated [t]he average annual equivalent dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an equivalent dose from natural background radiation of about 50 mSv [5 rem] in the first 17 years of life and about 250 mSv [25 rem] during an average 80-year lifetime. Substantial and convincing scientific data show evidence of health effects following high-dose exposures (many multiples of natural background). However, below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero. Id. Subsequently, the Director of Compensation Service issued an Advisory Opinion following the receipt and review of the February 2018 Radiation Review Memorandum. The Advisory Opinion concluded that, as a result of a medical opinion received from the Under Secretary for Health which stated that it is unlikely that the cancer resulted from ionizing radiation in service and following a review of the evidence in its entirety, “there is no reasonable possibility that the Veteran’s lung cancer, thyroid cancers, and/or cataracts resulted from radiation exposure in service.” See February 2018 Advisory Opinion. The Board accepts that the Veteran believed, as does the appellant, that the claimed disabilities were related to active service and specifically ionizing radiation exposure. However, neither the appellant nor the Veteran are competent to link his diagnoses for lung and thyroid cancer many years after service to any in-service injury or event, including radiation exposure, as the etiology is not susceptible to lay observation. Moreover, the etiology is complex and requires medical expertise not possessed by the Veteran or the appellant. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davison v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran’s and appellant’s medical opinion has no probative value. The Board assigns greater probative value to the opinions provided by the Under Secretary of Health, Compensation Service, and the Army Dosimetry Center, which support the conclusion the Veteran has not been exposed to significant levels of ionizing radiation. This evidence weighs against finding that the Veteran’s lung cancer, thyroid cancer and cataracts were caused by his exposure to radiation in service. A favorable medical opinion has not been presented to weigh in this matter. Additionally, service connection for lung cancer, thyroid cancer, and cataracts is not warranted on a direct basis as the evidence shows that the conditions were not incurred in service or otherwise related to service. In this regard, as noted above, the Veteran's lung cancer was not diagnosed until May 2008, thyroid cancer diagnosed in October 2000, and cataracts diagnosed in March 1996; the diagnoses range from 28 to 40 years after the Veteran’s discharge from service. Further, cancers are not shown during the initial post separation year. In sum, the preponderance of the competent and probative evidence is against a finding of service connection for lung cancer, thyroid cancer, or cataracts pursuant to the radiation provisions in 38 C.F.R. § 3.309(d) and 38 C.F.R. § 3.311, pursuant to the presumptive provisions in 38 C.F.R. § 3.309(a) as a chronic disease, and pursuant to direct service connection under 38 C.F.R. § 3.303. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 4. Entitlement to compensation under 38 U.S.C. § 1151 for lung cancer. 5. Entitlement to compensation under 38 U.S.C. § 1151 for thyroid cancer. Issues 4-5. It is contended that the VA Medical Center in Fayettville, North Carolina, was negligent in failing to diagnose and treat the Veteran’s thyroid and lung cancers. The appellant further contends that attending VA personnel failed to follow the appropriate standard of care. The question for the Board is whether it is at least as likely as not that the Veteran’s death due to lung cancer with underlying thyroid cancer was caused by VA medical care; and the proximate cause of the disability or death was either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the care, or (b) an event not reasonably foreseeable. The Board concludes that, while the Veteran’s death was due to lung cancer, the preponderance of the evidence weighs against a finding that VA care caused or substantially contributed to the development of his lung or thyroid cancer or that VA failed to timely diagnose and properly treat the disease. 38 C.F.R. § 3.361 (c); Loving v. Nicholson, 19 Vet. App. 96, 100 (2005); Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). A November 2017 VA medical opinion reflects that the Veteran was initially diagnosed with lung cancer, small cell lung carcinoma (SCLC), at a local non-VA hospital. Once diagnosed with lung cancer, the Veteran refused VA treatment for the lung cancer. Rather, the Veteran received his treatment at Duke oncology. Furthermore, the physician found that the Veteran had a long history of being a heavy smoking; smoking approximately one to two packs a day over a period of 40 years. The physician, by quoting the below medical article, noted that the Veteran’s SCLC diagnosis is: . . .distinguished from non-small cell lung cancer (NSCLC) by its rapid doubling time, high growth fraction, and the early development of widespread metastases. Although the cancer is initially highly responsive to chemotherapy and radiotherapy, the majority of patients will relapse with broadly resistant disease within a few months to a year from initial therapy. Small cell lung cancer (SCLC) occurs almost exclusively in smokers and appears to be most common in heavy smokers. Historically SCLC has been rare in never smokers, representing just 2.9 percent of the lung cancer cases in women, and none in men, from a case control series. Bonnie S Glisson, MD, FACP, Lauren A Byers, MD, Pathobiology and staging of small cell carcinoma of the lung, UPTODATE, https://www.uptodate.com/contents/pathobiology-and-staging-of-small-cell-carcinoma-of-the-lung (last updated Aug. 15, 2017). In addition, the November 2017 VA medical opinion found that it is less likely as not the Veteran’s treatment received in connection with his lung cancer and thyroid cancer was the result of the attending VA personnel failure to follow the appropriate standard of care. The physician took into account the above article and noted that there was no evidence that supports VA treatment contributed to the Veteran’s disability or cause of death. Moreover, the physician stated that the Veteran continued to smoke cigarettes despite being diagnosed with SCLS, noting that smoking is a strong risk factor for the development of cancer. Additionally, the death certificate denotes that the tobacco use contributed to the Veteran’s death. In regard to the thyroid cancer, the physician found that VA medical records show that the VA provided appropriate treatment and follow up of the Veteran’s thyroid cancer. In support of this conclusion, the physician observed that there was no evidence to suggest recurrence of the thyroid cancer. In this case, neither the Veteran nor the appellant are competent to provide an opinion that VA’s delayed diagnosis and treatment of the Veteran’s lung or thyroid cancer caused or substantially contributed to the Veteran’s death as this is not susceptible to lay observation. Here, the issue is medically complex and requires knowledge of the causes of cancer and an ability to understand the relevant medical test/lab findings. Jandreau, 492 F.3d at 1377 n.4. Therefore, the lay medical opinions have no probative value. The Board assigns greater probative value to the November 2017 VA medical opinion. The physician’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The appellant has not provided a favorable medical opinion to weigh in this matter. For the reasons explained above, the Board finds that the Veteran’s lung and thyroid cancers are not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, or medical or surgical treatment, or the result of an event that was not reasonably foreseeable. There has been no demonstration that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA failed to timely diagnose and properly treat the cancers and that such proximately caused the continuance or natural progress. Indeed, the November 2017 VA opinion is to the contrary. As such, the matters of foreseeability or whether the appellant provided informed consent for this treatment also need not be discussed. See 38 U.S.C. § 1151. In view of the foregoing, the Board concludes that the most probative evidence of record does not show that it is at least as likely as not that Veteran’s lung or thyroid cancer is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, and was not the result of an event not reasonably foreseeable. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffey, Associate Counsel