Citation Nr: 20006444 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 12-11 015 DATE: January 28, 2020 ORDER Entitlement to service connection for thyroid disability is denied. FINDING OF FACT The preponderance of the competent and credible evidence is against finding the Veteran’s thyroid disorder is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for loss of thyroid have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In September 2015 and April 2018, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. Entitlement to service connection for thyroid disability The Veteran seeks service connection for a thyroid disorder, which he asserts is due to exposure to ionizing radiation. Specifically, the Veteran asserts that he was exposed to ionizing radiation while serving on Johnston Atoll from July 1971 to September 1971. He has also alleged it may be related to herbicide agent exposure in Vietnam. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A “radiation-exposed” veteran is one who participated in a radiation-risk activity. A “radiation-risk activity” includes the onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or the presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other “radiogenic” diseases, including non-malignant thyroid nodular disease, which become manifest five years or more after service in an ionizing radiation-exposed veteran, may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. 38 C.F.R. § 3.311(b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran’s service personnel records confirm he served in Vietnam, and served on Johnston Atoll from July 1971 to September 1971. Johnston Atoll is shown to have been the site of Operation Dominic in 1962, prior to the Veteran’s service. The Board also notes that the Veteran had a non-malignant thyroid nodule removed from his thyroid in 1984. Further, the Veteran’s VA treatment records indicate the Veteran has hypothyroidism after thyroidectomy (history of neck radiation), non-cancerous. Thus, a current disability is shown. The question then becomes whether the condition is related to service, to include claimed exposure to ionizing radiation. 38 C.F.R. § 3.311. However, the most probative evidence is against the claim. In this regard, An April 2016 letter from the Defense Threat Reduction Agency (DTRA) indicated that during Operation DOMINIC, a U.S. atmospheric nuclear test series conducted in 1962, a missile and its warhead were destroyed on the launch pad at Johnston Island, resulting in significant damage to, and radioactive contamination of, the restricted access launch pad areas. In addition two other warheads were destroyed after their launch while above Johnston Island. In 1962, the restricted access areas \ were decontaminated, repaired, and returned to operation until its decommissioning in 1977. Accident recovery efforts extended to areas outside the restricted area with follow-up island surveys and remediation continuing from 1964 through 1996. During 1964 to 1965, large-scale remediation and island expansion occurred enlarging Johnston Island from 220 acres to 625 acres. The DTRA stated a dose estimate for this Veteran during his assignment to Johnston Island were an external gamma dose of less than 0.0001 rem, an external neutron dose of 0.0 rem, and an upper bound committed beta plus gamma dose to the thyroid of less than 0.001 rem for the period from July 13, 1971 to September 26 ,1971. In a January 2017 memorandum opinion, Dr. M.M., the Director, Post 9-11 Environmental Health Service, writing for the Under Secretary of Health, determined that it is unlikely the Veteran’s non-malignant thyroid nodular disease was caused by exposure to ionizing radiation during military service. Dr. M.M. noted that the Veteran was born in 1948 and the record shows the Veteran having served on Johnston Island from July 1971 to September 1971. As such, he found the Veteran was 22 years old at the time of initial exposure and the thyroid nodular disease was initially diagnosed 12 years after first exposure to ionizing radiation. He further noted the Veteran’s service personnel records do not contain a DD Form 1141 or other evidence of radiation exposure; however, he also noted the DTRA indicated that the dose the Veteran received during assignment at Johnston Island were an external gamma dose of less than 0.0001 rem, an external neutron dose of 0.0 rem, and an upper bound committed beta plus gamma dose to the thyroid of less than 0.001 rem. The Health Physics Society, in their position statement PS010-3, Radiation Risk in Perspective, revised in May 2016, states that “The 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.” As such, Dr. M.M. concluded that the Veteran’s total lifetime radiation dose did not exceed 100 mSv (10 rem) above natural background, and his non-malignant thyroid nodular disease was not related to his radiation exposure in service. Based on Dr. M.M.’s opinion and a review of the evidence in accordance with 38 C.F.R. § 3.311, the Director, Compensation Service (Under Secretary for Benefits), concluded that there is no reasonable possibility that the Veteran’s non-malignant thyroid nodular disease resulted from radiation exposure in service. Upon review of the record, the Board finds that the preponderance of the competent and probative evidence is against the claim. The Board finds the opinion from Dr. M.M. to be highly probative, as it considered the atmospheric testing history of the Johnson Island, and the evidence in the claims file, to include the estimated radiation dose provided by DTRA. Dr. M.M. provided a detailed opinion and rationale, explaining why the Veteran’s thyroid nodular disease was not related to radiation exposure in service. There is no medical opinion to the contrary. The Board has considered whether the Veteran is otherwise entitled to service connection for his thyroid disorder bases other than radiation exposure. However, there is no evidence that the Veteran had a thyroid disorder in service. A July 1971 examination report reveals that the Veteran’s endocrine system was normal. Furthermore, in a December 1971 statement of medical condition, prior to separation, the Veteran denied any changes to his medical condition since his last examination July 1971. There is no medical opinion of record suggesting the Veteran’s thyroid condition is related to service on a direct basis. Additionally, a thyroid disorder was not noted within one year of discharge from service. See 38 C.F.R. § 3.309(a). Rather, the condition was first shown approximately 12 years after his discharge from service. Finally, although the Veteran served in Vietnam, thyroid conditions are not included in the list of disabilities for which presumptive service connection is warranted due to herbicide agent exposure. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. There is no medical evidence of record suggesting the Veteran’s thyroid condition is related to service based on herbicide agent exposure. Although the Veteran believes that his thyroid disorder is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). In this regard, the diagnosis and etiology of thyroid disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his thyroid disorder is not competent medical evidence. In sum, the Board finds that the preponderance of the evidence is against the claim, and service connection for a thyroid disorder is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, Law Clerk 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.