Citation Nr: 1808450 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-06 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a thyroid disorder, to include exposure to ionizing radiation. 2. Entitlement to service connection for a prostate disorder, to include exposure to ionizing radiation. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION 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). The Veteran served on active duty in the United States Air Force from July 1954 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2015 and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Muskogee, Oklahoma and Jackson, Mississippi, respectively. FINDINGS OF FACT 1. The Veteran was not engaged in a "radiation risk activity" during service. 2. The evidence does not show that the Veteran was exposed to ionizing radiation during service. 3. Prostate cancer was not manifest in service or within one year of service, and is unrelated to service. 4. A thyroid disorder was not manifest during service. Hypothyroidism is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a prostate disorder, to include exposure to ionizing radiation, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2017). 2. The criteria for service connection for a thyroid disorder, to include exposure to ionizing radiation, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection The Veteran has specifically asserted that his claimed prostate and thyroid disorders are the result of exposure to ionizing radiation while in service. Specifically, on his October 2014 compensation claim, the Veteran reported exposure to ionizing radiation while stationed at Enewetak Atoll, Marshall Islands. On a January 2015 Radiation Risk Activity Information Sheet, the Veteran asserts that he "personally handled freight that was exposed to radiation directly related to exposure/explosion." The Veteran has not provided an alternative theory of service connection. To establish service connection a Veteran must generally 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Prostate cancer is identified as a "chronic" disease under 38 U.S.C.A §1101 and 38 C.F.R. § 3.309 (a). "For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 CFR 3.303 (b). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303 (d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. First, a "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309 (d)(3) as a Veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (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 service at one of three specified locations within the United States. 38 C.F.R. § 3.309 (d)(3)(i), (ii). The evidence of record establishes that the Veteran does not fall in one of these categories, and does not so allege. The Veteran served well after 1946, and was not present on site to participate in the atmospheric testing of a nuclear device. He also was not stationed in Paducah, Kentucky; Portsmouth, Ohio; Oak Ridge, Tennessee; or Amchitka Island, Alaska. The presumptions of 38 C.F.R. § 3.309 (d) are not applicable. The second theory, at 38 C.F.R. § 3.311, provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease first became manifest after service, where it was not manifest to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and where it is contended that the disease is a result of ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311 (a)(2). As is noted above, the Veteran's service was after July 1946. "In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies." 38 C.F.R. § 3.311 (a)(2)(iii). Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes prostate cancer. 38 C.F.R. § 3.311 (b)(2)(i)-(xxiv). 38 C.F.R. § 3.311 (b)(5) requires that the disease must become manifest 5 years or more after exposure. The Air Force issued a November 2015 Memorandum in response to VA's request for radiation exposure/dose for the Veteran. In the statement, the Air Force reported that upon requesting occupational radiation exposure monitoring records from the USAF Master Radiation Exposure Registry (MRER), they "found no external or internal radiation exposure data for this Veteran." The Memorandum notes that there have been cases where records, especially the DD Form 1141, were in the Veteran's individual military medical records or held by the local unit. It also indicated that the Defense Threat Reduction Agency (DTRA) may have additional information. A subsequent March 2016 Memorandum was issued by the Air Force, confirming the information in the November 2015 Memorandum. A review of the available service treatment records and personnel records does not show that a DD Form 1141 is otherwise available. The Veteran did not report that he was issued and wore a dosimetry device during service. The DTRA issued a December 2015 letter indicating that the Veteran's service record could not be found at the National Personnel Records Center (the record indicates that the Veteran's personnel documents are fire-related). As a result, DTRA conducted a search for alternate records. Personnel records indicated that the Veteran served in the United States Air Force from July 27, 1954 to June 6, 1956. Morning reports indicate that he joined the 4931st Operations Squadron, Enewetak Atoll, Marshall Islands, on August 18, 1955. On April 2, 1956, the Veteran departed Enewetak for morale leave and attached to the 1501st Air Terminal Squadron, Travis Air Force Base (AFB), California, on May 8. The Veteran departed this unit on May 16 for Altus AFB, Oklahoma, where he separated from service on June 6, 1956. The letter notes that Operation REDWING was conducted in the Pacific Proving Ground from May 5 to August 6, 1956, at which point the Veteran was in California. "In summary, historical records do not document [the Veteran's] participation in U.S. atmospheric nuclear testing, as defined by VA." After appropriate development has been undertaken by VA in accordance with 38 C.F.R. § 3.311, there is no evidence that the Veteran was exposed to ionizing radiation while in service. Third, and notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir.1994). Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being related to exposure to ionizing radiation, but must also determine whether his disability is otherwise the result of active service. In other words, the fact that the Veteran may not meet the requirements of a presumptive regulation would not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation. Private medical records indicate that the Veteran was diagnosed with prostate cancer in July 2014. Private and VA treatment records indicate that the Veteran has been diagnosed with hypothyroidism. As noted above, prostate cancer is a "chronic" disease listed under 38 C.F.R. § 3.309(a), and as a result, the provisions of 38 CFR 3.303 (b) are applicable. Conversely, hypothyroidism is not a disease listed under 38 C.F.R. § 3.309(a). Service treatment records do not document any relevant symptoms, treatment, complaints, diagnoses, or other notations with respect to a prostate or thyroid disorder. The Veteran's May 1956 separation examination revealed a normal anus and rectum, prostate if indicated, genitourinary system, and endocrine system. The Veteran is competent to report that he believes he was exposed to radiation in while handling freight in service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran did not further report the nature, origin, and labelling of the freight and how he came to understand that the materials that he handled were radioactive. Radiation levels are not observable by the naked eye, and the Veteran is not competent to provide a radiation exposure dose estimate based upon his lay observation. The evidence of record, including reports issued by the Air Force and the DTRA indicate that the Veteran was not exposed to ionizing or any form of radiation while in service. As a result, the provisions of 38 C.F.R. § 3.309 (d) and 38 C.F.R. § 3.311 are not applicable. In sum, the evidence does not show that the Veteran was exposed to ionizing radiation, or any form of radiation, while in service. This has been the Veteran's sole contention. To the extent that the Veteran has asserted that his thyroid and prostate disorders are otherwise related to service, the evidence does not support as much. There is no competent and credible evidence linking the Veteran's prostate cancer to service. The contemporaneous records establish that there were no objective manifestations of a prostate disorder in service, there were no manifestations of prostate cancer within one year of separation, and prostate cancer was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than any assertion that prostate cancer is related to service. Similarly, prostate cancer was not "noted" during service within the meaning of section 3.303(b). Service treatment records do not show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Furthermore, the evidence does not establish that prostate cancer was manifest to a compensable degree with one year of separation. 38 C.F.R. §§ 3.307; 3.309. In addition, there is no competent and credible evidence linking the Veteran's hypothyroidism to service. The contemporaneous records establish that there were no objective manifestations of hypothyroidism in service and hypothyroidism was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than any assertion that hypothyroidism is related to service. In essence, the evidence establishes that the Veteran was not exposed to ionizing radiation while in service. All relevant systems were normal upon separation from service and the onset of prostate cancer and hypothyroidism occurred many years after service. The Board finds that the contemporaneous in-service and post-service treatment records are entitled to greater probative weight and credibility than the lay statements of the Veteran. The more probative evidence establishes that he did not have a prostate or thyroid disorder during service or within one year of separation. The Board finds that the preponderance of the evidence is against the claims and the claims must be denied. ORDER Entitlement to service connection for a thyroid disorder, to include exposure to ionizing radiation is denied. Entitlement to service connection for a prostate disorder, to include exposure to ionizing radiation is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs