Citation Nr: 20007472 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-40 152 DATE: January 29, 2020 ORDER Entitlement to service connection for thyroid nodular disease is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that the Veteran’s thyroid nodular disease was incurred in or otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for thyroid nodular disease have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty with the United States Marine Corps from December 1955 to March 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 rating decision. In November 2018, the Veteran testified at a Board hearing. A transcript of the hearing is of record. 1. Entitlement to service connection for thyroid nodular disease Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Entitlement to an award of service connection for a disability that is claimed to have resulted from a veteran’s in-service exposure to ionizing radiation may be established by three distinct means. First, a radiation-exposed Veteran may be presumptively service-connected for any of the specific diseases listed in 38 C.F.R. § 3.309(d), which encompass a variety of different forms of cancer. If the requirements for presumptive service connection under 38 C.F.R. § 3.309(d)(3) (which defines “radiation-exposed veteran”) are not met, service connection may also be established if the evidence shows the existence of any other “radiogenic” diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2) or other claimed diseases considered to be radiogenic through a showing of competent scientific or medical evidence. 38 C.F.R. § 3.311(b)(4). Finally, direct service connection may be established by demonstrating that the disease or malady was incurred during, or aggravated by, service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When it has been determined that: (1) a Veteran has been exposed to ionizing radiation; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for benefits shall consider with reference to 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary of Health. 38 C.F.R. § 3.311(b), (c)(1). The medical advisor must determine whether sound scientific and medical evidence supports a conclusion that it is “at least as likely as not” that the disease resulted from in service radiation exposure or whether there is “no reasonable possibility” that the disease resulted from in service radiation exposure. 38 C.F.R. § 3.311(c)(1). A review of the claims file shows that the Veteran was diagnosed with benign thyroid nodules (presently characterized as thyroid nodular disease) in May 2014. His service treatment records are silent regarding any complaints, symptoms or signs relating to the thyroid. The Veteran contends that his thyroid nodular disease was caused by his exposure to ionizing radiation during service. During the Veteran’s service he participated in Operation PLUMBBOB in 1957. Operation PLUMBBOB is considered a “radiation-risk activity;” thus, the Veteran is considered a “radiation-exposed veteran.” 38 C.F.R. § 3.309(d)(3). After receiving the Veteran’s service connection claim for thyroid nodular disease, the RO forwarded the claim to the Defense Threat Reduction Agency (DTRA) to obtain radiation dose estimates. In September 2015, DTRA provided a letter, confirming the Veteran’s participation in Operation PLUMBBOB. The letter also provided the radiation dose estimates for the Veteran, as well as, an explanation of how doses are determined. The September 2013 letter stated that the radiation doses provided are based on “worst-case parameters and assumptions” providing the “maximum benefit of the doubt” for the Veteran. The highest radiation dose that the Veteran could have received as reported in DRTA’s September 2015 letter are: external gamma dose: 16 rem; external neutron dose: 0.5 rem; internal committed dose to the thyroid (alpha): 0.1 rem; and internal committed dose to the thyroid (beta + gamma): 7 rem. In September 2015, the Director of Compensation Service sought an advisory opinion from the Under Secretary of Health as to the likelihood that the Veteran’s thyroid nodular disease resulted from exposure to radiation in service. In September 2015, the Director, Post-9/11 Era Environmental Health Service provided an advisory opinion that it was unlikely that the Veteran’s non-malignant (benign) thyroid nodular disease could be attributed to ionizing radiation exposure while in military service. Facts considered that were specific to this Veteran included his age at the time of exposure and date of diagnosis. Here, it was noted that the hypothyroidism in persons under 30 years of age at the time of radiation did show a dose-dependent excess; however, this appeared within 20 years of exposure and showed a relative risk of only 1.24 at a dose of 1 Gy (100 rem), the Veteran’s dose of 7.1 rem to the thyroid was less than 10% of this threshold. The Veteran’s thyroid dose 7.1 rem was well below the threshold dose. Based on the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s thyroid nodular disease is related to service, to include his exposure to radiation. The DRTA confirmed that the Veteran participated in a radiation-risk activity. Therefore, the Veteran met the definition of a radiation-exposed veteran. 38 C.F.R. § 3.309(d)(3). However, thyroid nodular disease is not among the diseases considered specific to radiation-exposed veterans under 38 C.F.R. § 3.309(d)(2) such that presumptive service connection would be warranted. Although the requirements for presumptive service connection are not met, non-malignant thyroid nodular disease is a radiogenic disease under 38 C.F.R. § 3.311(b)(2). Given the Veteran’s exposure during service and his diagnosis of thyroid nodular disease several years after exposure, all action required under 38 C.F.R. § 3.311 was taken. A dose assessment was obtained and the Under Secretary for Health determined that it was unlikely that the Veteran’s non-malignant thyroid nodular disease could be attributed to ionizing radiation exposure while in military service. The Veteran has not submitted any material evidence of a radiation dose estimate for an outside and objective medical opinion. Accordingly, the Veteran is not entitled to service connection under 38 C.F.R. § 3.311. Moreover, the Veteran’s service treatment records are negative for thyroid complaints, treatment, or diagnoses during service. The Veteran concedes that he was never treated for thyroid problems during service. The Veteran was not diagnosed with thyroid nodular disease until many decades after service and does not report ongoing thyroid symptoms from service. Again, there is no competent evidence relating the Veteran’s disability to his active service, to include his radiation exposure. Consequently, the claim must be denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.