Citation Nr: 18159662 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 09-36 719 DATE: December 19, 2018 ORDER Entitlement to service connection for diabetes mellitus, as due to exposure to ionizing radiation, is denied. Entitlement to service connection for infertility, claimed as low sperm count, as due to exposure to ionizing radiation, is denied. Entitlement to service connection for residuals of gangrene of the ascending colon, including as due to exposure to ionizing radiation, is denied. Entitlement to service connection for a disorder manifested by painful joints, as due to exposure to ionizing radiation, is denied. Entitlement to service connection for a disorder manifested by bone pain, as due to exposure to ionizing radiation, is denied. FINDINGS OF FACT 1. Diabetes mellitus was not manifested during the Veteran’s active duty service or within the one-year period following separation, nor is it otherwise related to the Veteran’s active duty service, to include exposure to ionizing radiation during service. 2. Infertility, claimed as low sperm count, was not manifested during the Veteran’s active duty service, nor is it otherwise related to the Veteran’s active duty service, to include exposure to ionizing radiation during service. 3. Gangrene of the ascending colon was not manifested during the Veteran’s active duty service, nor is it otherwise related to the Veteran’s active duty service, to include exposure to ionizing radiation during service. 4. A disorder manifested by painful joints was not manifested during the Veteran’s active duty service and arthritis did not manifest within the one-year period following separation, nor is it otherwise related to the Veteran’s active duty service, to include exposure to ionizing radiation during service. 5. A disorder manifested by bone pain was not manifested during the Veteran’s active duty service and arthritis did not manifest within the one-year period following separation, nor is it otherwise related to the Veteran’s active duty service, to include exposure to ionizing radiation during service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by the Veteran’s active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. 2. Infertility, claimed as low sperm count, was not incurred in or aggravated by the Veteran’s active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. 3. Gangrene of the ascending colon was not incurred in or aggravated by the Veteran’s active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. 4. A disorder manifested by painful joints was not incurred in or aggravated by the Veteran’s active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. 5. A disorder manifested by bone pain was not incurred in or aggravated by the Veteran’s active duty service, nor may it be presumed to be incurred in such service. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to January 1965. This matter comes before the Board on appeal from August 2005 and February 2006 Regional Office (RO) rating decisions. In January 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, such as diabetes mellitus and arthritis, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Claims based upon exposure to ionizing radiation are governed by separate regulations and each provides a separate distinct basis for establishing service connection. See 38 C.F.R. §§ 3.309, 3.311. First, there are diseases that are presumptively service connected in radiation-exposed Veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, if the condition at issue is a radiogenic disease, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. 38 C.F.R. § 3.309(d). The Board finds that service connection on the first basis is not warranted, as none of the disabilities at issue in this case qualifies for presumptive service connection under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309(d). The Board also finds that service connection on the second basis is not warranted, as none of these disabilities is considered a radiogenic disease. The Board will next consider whether service connection is warranted on a direct basis, to include as directly related to exposure to ionizing radiation while in service. Entitlement to service connection for diabetes mellitus, as due to exposure to ionizing radiation, is denied. The Board notes that the Veteran’s service treatment records reflect that he did not have diabetes, or symptoms that were later attributed to diabetes, in service. He expressly denied a history of, or current, sugar in his urine on his October 1964 separation medical history report. He later signed a statement asserting that there has been no change in his medical condition since his separation examination. In June 2005, the Veteran reported that he has been a diabetic since about 1970. In an August 2009 statement, the Veteran reported that he developed diabetes shortly after he got out of service. He testified at his January 2012 Board hearing that he first found out that he had diabetes when he went for a physical at work. He noted that his blood sugar level was so high that it must have come on gradually. Neither this testimony nor the medical evidence of record reflects that the Veteran developed diabetes within one year of his separation from service. In August 2018, VA sought an opinion with respect to whether the Veteran’s diabetes was caused or aggravated by service. Based on review of the record, the examiner opined that the Veteran’s diabetes mellitus was less likely than not incurred in or caused by service. As a rationale, the examiner noted that review of the available scientific/medical literature does not show evidence-based medical information that had established a cause and effect relationship of ionizing radiation exposure as a risk and/or aggravating factor beyond its natural progression for diabetes mellitus. He also supported this rationale with citation to a reference article entitled “Risk factors for type 2 diabetes mellitus.” The Board finds this opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and includes a medical rationale that is supported by pertinent medical literature. The only remaining contrary opinion comes from the Veteran himself. He has noted that he has no family history of diabetes and believes that his diabetes is related to his ionizing radiation exposure. (See Board hearing transcript, page 16.) The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the Veteran does not possess the necessary medical expertise to attribute a disability to exposure to ionizing radiation. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. Entitlement to service connection for infertility, claimed as low sperm count, as due to exposure to ionizing radiation, is denied. The Veteran claims that he has a low sperm count due to ionizing radiation exposure in service. He noted that he was unable to have children and ended up adopting two children. He reported at his October 2014 VA examination that he and his wife were evaluated for infertility in the late 1960s and that he was told that his sperm was “not good.” He stated that he was never treated for it. The August 2018 VA examination report notes that, even though there were no medical records to warrant a diagnosis of infertility, review of the available medical/scientific literature does not show evidence-based medical information that had established a direct cause and effect relationship of ionizing radiation exposure as a risk and/or aggravative factor beyond its natural progression for infertility. To support this conclusion, the examiner cited to a reference article called “Causes of male infertility.” The Board finds this opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and includes a medical rationale that is supported by pertinent medical literature. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the Veteran does not possess the necessary medical expertise to attribute infertility to exposure to ionizing radiation. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. Entitlement to service connection for residuals of gangrene of the ascending colon, including as due to exposure to ionizing radiation, is denied. With respect to the claim of entitlement to service connection for residuals of gangrene of the ascending colon, the Veteran’s service treatment records contain no indication that he ever complained of or sought treatment for symptoms associated with his colon in service. VA medical records note that three feet of the Veteran’s colon were removed due to gangrene in 1998. He testified at his Board hearing that the doctors were unable to give an etiology for his gangrene, so he believes it was due to radiation. An August 2015 note from his VA gastroenterologist notes “prior report of colonic gangrene, the most likely cause of which would have been severe colonic ischemia.” An August 2018 VA examination report opines that it is less likely than not that the gangrene of the Veteran’s colon was incurred in or caused by service. As a rationale, the examiner noted that review of available medical/scientific literature does not show evidence-based medical information that had established a direct cause and effect relationship of ionizing radiation exposure as a risk and/or aggravating factor beyond its natural progression for gangrene of the ascending colon. He cited the article called “Overview of intestinal ischemia in adults” in support of his conclusion. The Board finds this opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and includes a medical rationale that is supported by pertinent medical literature. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the Veteran does not possess the necessary medical expertise to attribute a disability to exposure to ionizing radiation. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. Entitlement to service connection for a disorder manifested by painful joints, as due to exposure to ionizing radiation, is denied. Entitlement to service connection for a disorder manifested by bone pain, as due to exposure to ionizing radiation, is denied. The Veteran’s claims of entitlement to service connection for a disorder manifested by painful joints and a disorder manifested by bone pain includes his reports of symptoms involving the fingers, knees, arms, hands, shoulders, back, and right hip. (See Board hearing transcript, pages 7-10.) He testified that, due to the pain, he “would get this, I call them black outs because all of a sudden just if I snap my fingers I would hit the ground or the floor because I would pass out and then gradually I was getting my sense back and get up.” On VA examination in October 2014, the Veteran was diagnosed with degenerative joint disease of the left knee and degenerative disc disease of the lumbar spine. The October 2014 VA examination report also notes that the Veteran reported problems with his back and both knees starting about 15 years ago. It notes that the Veteran was evaluated in the mid-2000s and that he reported that he had arthritis. Service treatment records reflect that the Veteran never complained of nor sought treatment for problems with his bones or joints in service, and he denied any history of or current relevant symptoms on his October 1964 medical history report. His medical records contain no indication that he sought treatment for arthritis within one year of separation from service. In an August 2018 VA examination report, the examiner opined that these conditions were less likely than not incurred in or caused by service. As a rationale, he noted that the available medical/scientific literature does not show evidence-based medical information that had established a cause and effect relationship of exposure to ionizing radiation as a risk and/or aggravative factor beyond its natural progression for degenerative joint disease of the left knee and degenerative disc disease of the lumbar spine, manifested as painful joints or bone pain. In support of this conclusion, he cited an article called “Risk Factors for and Possible Causes of Osteoarthritis.” The Board finds this opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and includes a medical rationale that is supported by pertinent medical literature. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the Veteran does not possess the necessary medical expertise to attribute a disability to exposure to ionizing radiation. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, the claims are not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claims must be denied. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel