Citation Nr: 19139986 Decision Date: 05/23/19 Archive Date: 05/22/19 DOCKET NO. 15-42 706A DATE: May 23, 2019 ORDER Entitlement to service connection for osteoporosis, claimed as due to radiation and herbicide exposure, is granted. REMANDED Entitlement to service connection for a male reproductive condition, to include atrophy of testicles and sterility, claimed as due to radiation and herbicide exposure, is remanded. FINDING OF FACT The diagnosed osteoporosis has been shown to be etiologically related to the Veteran’s in-service radiation exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for osteoporosis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1949 to July 1974. The Veteran died in May 2017. The appellant is the Veteran’s widow. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In October 2017, the appellant was substituted as the claimant for issues noted on the cover page that were pending at the date of the Veteran’s death. In December 2018, the appellant testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Osteoporosis The appellant asserts that the Veteran had osteoporosis related to radiation and/or herbicide exposure. Given the favorable disposition of this appeal, the Board will only address entitlement to service connection on the basis of radiation exposure. Service connection for a 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. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran’s service treatment records (STRs) include an August 1951 annual examination showing the Veteran worked on Operation Greenhouse and Ranger and that he flew through radioactive clouds. In this regard, in June 2013, the representative submitted a November 1984 letter from Department of the Air Force regarding the Veteran’s confirmed radiation exposure including radiation dosages due to participation in Operation Greenhouse, Ranger and Ivy. Finally, the Board notes that the October 2013 rating decision conceded exposure to radiation. With in-service radiation exposure conceded, the Board turns to the question of whether the Veteran’s osteoporosis was related to that exposure. In this regard, the Board notes that the evidence of record includes a March 2013 letter by the Veteran’s private physician, Dr C.A.K., in which the physician opined that it was “likely as not that [the Veteran’s] osteoporosis could be secondary to the radiation exposure.” No rationale was provided. In another March 2013 letter by Dr. C.T.C. submitted in June 2013, the Veteran was noted to have been under his care for severe osteoporosis of the lumbar spine which was found “distinctly worse than would be expected for a healthy individual” of the Veteran’s age. Dr. C.T.C. opined that the Veteran’s radiation exposure “would explain a significant component of his severe osteoporosis and associated difficulties.” No rationale was provided. The Veteran underwent a VA osteoporosis examination in August 2013. The Veteran reported repeated exposure at nuclear testing sites including the first thermonuclear testing from October 1950 to October 1952, and that he performed post-air sampling and that testing began within 15-minutes of the explosions and over the course of days. The Veteran also reported that his physician had told him that the severity of his osteoporosis was not commonly seen and could be due to his in-service radiation exposure. The examiner noted a current diagnosis for osteoporosis of the thoracolumbar spine which was confirmed by X-ray testing. The examiner opined that the diagnosed osteoporosis was less likely than not (less than 50 percent probability)” etiologically related to service. In support of her opinion, the examiner noted that the medical literature did not support an etiological finding between broken bones and the development of osteoporosis. In this regard, the examiner noted that the STR revealed broken bones in the Veteran’s feet and that the Veteran denied problems with osteoporosis related to previous broken bones. No etiological opinion between the development of osteoporosis and radiation exposure was provided. In a September 2014 letter, Dr. C.T.C. reiterated his medical opinion that the Veteran’s in-service exposure to radiation “may have played a role in the advanced degree of osteoporosis resulting in significant spine issues.” As with the March 2013 letter, no rationale was provided. Lastly, in a January 2019 letter, Dr. C.T.C. stated that he treated the Veteran for a number of years for osteoporosis of the lumbar spine which was noted as disproportionate from what one would expect in an elderly male. The Veteran was also noted to have developed a pathologic compression fracture. Dr. C.T.C. noted the Veteran had significant radiation exposure during service and that radiation was known to have significant impact on bone quality as well as known etiology in the development of pathologic fractures. These findings were also noted to be supported by medical literature. Based on the above, Dr. C.T.C. opined that the Veteran’s service-related radiation exposure “contributed greatly to his spine pathology.” After a review of the evidence of record, the Board finds the cumulative medical opinion letters by Dr. C.T.C. and C.A.K. the most probative evidence of record. In this regard, Dr. C.T.C. found that the Veteran’s diagnosed osteoporosis was etiologically related to his in-service radiation exposure. Specifically, Dr. C.T.C. noted the advanced degree of osteoporosis which was found distinctly worse than would be expected and determined that the Veteran’s confirmed in-service radiation exposure “contributed greatly” to his pathology. In support of his etiological opinion, Dr. C.T.C. noted medical literature supporting an etiological association between radiation exposure and the Veteran’s pathology including poor bone quality and the development of fractures. While lacking supporting rationales, the Board additionally finds that Dr. C.T.C.’s January 2019 positive nexus opinion is bolstered by his previous positive nexus opinions as well as the positive nexus opinion provided by Dr. C.A.K. Importantly, as the August 2013 VA examiner failed to provide a medical opinion as to an etiological association between the Veteran’s conceded in-service radiation exposure and the development of osteoporosis, there is no medical opinion to the contrary. Accordingly, as all the criteria for service connection have been met, the Board concludes that service connection for osteoporosis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Male reproductive condition The appellant asserts that the Veteran had atrophy of the testicles related to radiation and/or herbicide exposure. The Veteran’s STRs include a June 1949 enlistment examination showing the Veteran reported having had mumps. An August 1951 annual examination also shows the Veteran reported having had mumps which the clinician noted as having occurred in 1947 followed by testicular involvement with no other complications or sequelae. Additionally, a December 1958 examination noted an abnormal genitourinary system due to non-symptomatic marked bilateral testicular atrophy secondary to mumps orchitis when the Veteran was a teen. After separation from service in July 1974, a December 1976 VA medical record shows the Veteran was seen the previous January for orchitis epididymitis. The Veteran reported pain in his right testicle that occurred two-months prior. The Veteran also reported that he had mumps at age 18 and that he was found to be sterile. An examination revealed atrophic testicles compatible with post-mumps/orchitis. The Veteran was diagnosed with previous bilateral mumps epididymal orchitis with subsequent post-inflammatory atrophy. At a May 1996 VA Agent Orange examination, the examiner noted bilateral small testicular atrophy and a diagnosis for azoospermia. Additionally, a September 2003 diabetes examination noted the Veteran’s testicles were slightly below average size. Finally, the Board notes that a November 2004 VA diabetes examination noted a physical examination revealing an atrophic left testicle. The examination also noted an incidental finding of sterility found “probably related to his radiation exposure while he was in the military at the nuclear test site as indicated in the history.” While the Board notes that the Veteran’s had filed a claim for atrophy of testicles secondary to radiation exposure, a review of the evidence of record shows a related diagnosis for sterility in which a VA examiner provide a speculative positive nexus opinion. Accordingly, the Board has broadened the claim on appeal as noted on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Based on the above, and in consideration of the inadequate speculative nexus opinion provided by the VA examiner, the Board finds that a VA opinion is necessary to determine the nature and etiology of any male reproductive condition that may be related to the claim for atrophy of the testicles. In this regard, the Board notes the Veteran had been previously service connected for erectile dysfunction secondary to his service-connected diabetes; thus, that condition is not to be considered. The matter is REMANDED for the following action: Obtain a VA opinion to determine the nature and etiology of the Veteran’s diagnosed testicular atrophy and sterility. The examiner should provide the following opinions: (a) Did the Veteran’s diagnosed male reproductive condition, including testicular atrophy and sterility, clearly and unmistakably (i.e., undebatably) exist prior to his enlistment in service (prior to June 1949)? The examiner is asked to review the Veteran’s STRs and the December 1979 VA medical record showing that the Veteran reported marked bilateral testicular atrophy secondary to mumps in 1947. (b) If so, is there clear and unmistakable evidence that the pre-existing male reproductive condition(s) was not aggravated (i.e., is it undebatable that the disability did not undergo a permanent increase in severity) during the Veteran’s period of active service? If the Veteran’s pre-existing male reproductive condition(s) did undergo a permanent increase in severity, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? (c) For any male reproductive condition that did not pre-exist his active service, the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such condition is etiologically related to the Veteran’s service, to include conceded radiation and herbicide exposure. The examiner is asked to address any conflicting medical opinion of record, including the November 2004 VA diabetes examination report. (Continued on the next page)   The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination including this Remand. Reasons should be provided for any opinion rendered. The examiner must consider the medical records and lay statements. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.