Citation Nr: 1823239 Decision Date: 04/17/18 Archive Date: 04/25/18 DOCKET NO. 13-17 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for thyroid cancer. 2. Entitlement to service connection for non-Hodgkin's lymphoma. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Air Force from February 1984 to September 1987, with additional periods of active duty for training from June 1988 to September 1988, and from January 1992 to June 1992, as well as additional time served in the Air Force National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Board previously remanded these issues in November 2015. FINDINGS OF FACT 1. The probative and competent evidence is against a finding that the Veteran's thyroid cancer is related to her period of active service, to include in-service ionizing radiation exposure. 2. The probative and competent evidence is against a finding that the Veteran's non-Hodgkin's lymphoma is related to her period of active service, to include in-service ionizing radiation exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for thyroid cancer, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2017). 2. The criteria for entitlement to service connection for non-Hodgkin's lymphoma, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Neither the Veteran nor her representative has raised any other 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 a duty to assist argument). Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including malignant tumors, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is legally presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection for a chronic disease, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, for veterans who participated in a "radiation risk activity" there are certain diseases which are presumptively service-connected. 38 C.F.R. § 3.309 (d). The enumerated diseases include non-Hodgkin's lymphoma and thyroid cancer. Second, service connection can be established with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a "radiogenic disease." Thyroid cancer and non-Hodgkin's lymphoma are listed as "radiogenic diseases." Under 38 C.F.R. § 3.311, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. §§ 3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. In pertinent part, section 3.311 (b)(1) provides that upon initial review of a claim, when it is determined that (i) a veteran was exposed to ionizing radiation as a result of in service activities; (ii) such veteran subsequently developed a radiogenic disease, including thyroid cancer and non-Hodgkin's lymphoma; and (iii) such disease first became manifest with the applicable time period (i.e. five years or more after exposure), before its adjudication, the claim will be referred to the Under Secretary for Benefits for consideration as to whether sound scientific and medical evidence, including an advisory medical opinion from the Under Secretary for Health if necessary, indicates that the claimed disease resulted from exposure to radiation in service. Finally, service connection for a condition claimed to be due to exposure to ionizing radiation can be established by direct service connection, under the legal criteria described above. 38 C.F.R. 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (holding that 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). The Veteran seeks entitlement to service connection for thyroid cancer and non-Hodgkin's lymphoma. The Veteran contends that both conditions, which were diagnosed in 2008-2009, are causally related to an in-service exposure to ionizing radiation while she went to Radiologic Technology School and worked as an x-ray technician thereafter. As set forth above, service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in three different ways. See Davis, 10 Vet. App. at 211; Rucker, 10 Vet. App. at 71. With respect to the first method of establishing service connection, a presumption for service connection is established if a veteran has a specifically enumerated disability and participated in a "radiation risk activity." 38 C.F.R. § 3.309(d). While the enumerated diseases do list lymphoma and thyroid cancer, the record does not reflect and the Veteran has not asserted that she has participated in a defined "radiation risk activity" as defined by the regulation. For example, she did not participate onsite in a test involving the atmospheric detonation of a nuclear device and she did not participate in the occupation of Hiroshima or Nagasaki. Her experience in training and serving as a radiology technologist for the Kansas Air National Guard would not qualify as a radiation risk activity under the regulation. Thus, the Veteran does not have a basis for presumptive service connection under 38 C.F.R. § 3.309(d). Second, service connection may be established for certain "radiogenic diseases," which include both thyroid cancer and non-Hodgkin's lymphoma, pursuant to special development procedures specifically prescribed in 38 C.F.R. § 3.311. However, those development procedures resulted in a conclusion that there was no reasonable possibility that the Veteran's thyroid cancer or lymphoma had resulted from ionizing radiation exposure in service. The Veteran has stated that she was possibly exposed to ionizing radiation during tech school, and while she worked as a radio operator and in combat crew communications. She asserted that in several instances she worked in close proximity to radios wherein she was exposed to electromagnetic radiation. The Veteran also reported exposure from working as an x-ray technician. The Veteran sought radiation exposure records from when she was attending Radiology School, but was told that there were no records on radiation levels during training or at the school. In July 2017 the United States Air Force responded to an inquiry on the Veteran's radiation levels. After consulting the Veteran's occupational radiation monitoring records from the Air Force Master Radiation Exposure Registry (MRER), they determined that the Veteran's total effective dose equivalent (TEDE) was recorded at 0.02 rem, which was far less than the annual TEDE limit for occupationally exposed individuals of 5 rem. The case was forwarded to the VA Under Secretary for Health, pursuant to the Board's November 2015 remand directive. In January 2017, the Director, Post 9-11 Era Environmental Health Program (DEHP) issued an opinion, on behalf of the Under Secretary. This opinion concluded that it is unlikely that the Veteran's cancers were a result of exposure to ionizing radiation during service. The doctor noted that the Veteran was exposed to a TEDE of 0.02 rem during service, but that there was no record of exposure while working as a radiation technician during her National Guard service. Given that there was no record of exposure, the doctor assigned a TEDE of 2.5 rem, which was based on 0.5 rem per year multiplied by five years in National Guard service. He concluded that the Veteran's total dose for all periods of service was 2.02 rem. The doctor cited from a Health Physics Society position statement that the annual equivalent dose from natural background radiation in the United States was about 3 mSv, or 0.3 rem, but that an average person might accumulate up to a 5 rem dose over 17 years, and a 25 rem dose during an average 80-year lifetime. The DEHP opinion also noted that the Health Physics Society has found that "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." Considering the opinion from DEHP, in January 2018 the Director of Compensation Services issued an opinion that found that there was no reasonable possibility that the Veteran's thyroid cancer and lymphoma were the result of exposure to ionizing radiation. The Board finds that the opinion of the Under Secretary of Health has great probative weight, as it was based on a review of the claims folder as well as the factors delineated in section 3.311 (e) such as the Veteran's radiation dose, family history, and exposure to other carcinogens, such as through smoking. See Hilkert v. West, 12 Vet. App. 145, 148 (1999). This information was provided to the Under Secretary of Health in a memorandum from the Compensation Services in a November 2017 memorandum. The record contains no competent medical evidence to contradict this opinion. The Veteran has stated it is her belief that her time working as a radio technician and x-ray technician could have led to an exposure to radiation, which caused her cancer. Jandreau, 492 F.3d 1372. The Board notes that the Veteran has submitted several studies about the occurrence of thyroid cancer and non-Hodgkin's lymphoma, but these studies provide general information about these diseases, and do not apply to the Veteran specifically. The Veteran also submitted ongoing treatment records from her physicians and oncologist describing her treatment regimen, but these records do not provide an etiology for her disabilities. There is no competent medical evidence to support her assertions, and in fact, the only medical opinion is against the Veteran's assertion. The Veteran's thyroid cancer and lymphoma involve pathological processes that are not readily observable to a layperson. The Board finds that in light of the non-observable nature of these pathologies, the issue of the origin of the Veteran's thyroid cancer and lymphoma is a medical question requiring medical training, expertise, and experience. Therefore, the Board finds that the medical opinion provided by the office of the Under Secretary of Health outweighs the Veteran's lay opinion. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Lastly, the Board notes that the Veteran has not claimed and the evidence does not reflect that her thyroid cancer and lymphoma developed during service or within one year (or even five years) of service for direct causation. It is not disputed that her disabilities were diagnosed in 2008 and 2009, approximately 15 years after separation from service. Therefore, the claim for direct service connection cannot succeed. In making these determinations, the Board concludes that the preponderance of the evidence is against the claims of entitlement to service connection for thyroid cancer and non-Hodgkin's lymphoma. 38 U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board sympathizes with the Veteran's conditions, in applying the available evidence to the law, the claims cannot succeed. ORDER Entitlement to service connection for thyroid cancer is denied. Entitlement to service connection for non-Hodgkin's lymphoma is denied. ____________________________________________ Lana K. Jeng Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs