Citation Nr: 21002054 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-00 846 DATE: January 12, 2021 ORDER Entitlement to service connection for a thyroid condition, to include Hashimoto’s thyroiditis and hypothyroidism, due to ionizing radiation exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran’s thyroid condition manifested in service or was otherwise related to service, to include exposure to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for a thyroid condition, to include Hashimoto’s thyroiditis and hypothyroidism, due to ionizing radiation exposure were not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Army from March 1981 to March 1984. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. In May 2018, the Board remanded the claim for further development in accordance with 38 C.F.R. § 3.311. The RO forwarded the claim to the Defense Threat Reduction Agency (DTRA) for evaluation and verification of the Veteran’s participation in a radiation risk activity. DTRA found no evidence he participated in US underground nuclear weapons tests. Since his claim might include potential exposure at a nuclear duty position, it was recommended that an inquiry be made with the US Army Medical Command. The RO sent requests for information related to this claim to the US Army Medical Command in October 2019, November 2019, and January 2020. A response dated November 2019 was received in January 2020. The Board remanded the claim again in May 2020 for additional development in accordance with 38 C.F.R. § 3.311. All relevant records related to the Veteran’s radiation exposure were to be forwarded to the Under Secretary for Health to prepare a radiation dose estimate, to the extent feasible. If a specific estimate could not be made, then a range of possible doses should be provided. If a dose estimate was not feasible based on the information available this should be noted in the record and more information should be requested from the Veteran if necessary. If the above requested development showed a positive dose estimate, then referral should be made to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311. In August 2020, a memorandum was sent to the Under Secretary for Health regarding the development of this claim as ordered in the May 2020 Board remand. A response was received from Post Deployment Health Services in August 2020 assigning a radiation dose. The Director of Compensation Service issued an advisory opinion under 38 C.F.R. § 3.311 upon receipt of the advisory medical opinion from the Post Deployment Health Service written on behalf of the Under Secretary for Health. Therefore, there was substantial compliance with the May 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that since the issuance of the August 2020 SSOC additional records were added to the claims file. These records were either cumulative or not pertinent to the issue discussed below. Additionally, the Board notes in October 2020 another response was received to the RO’s request to verify participation in a radiation risk activity from the US Army Medical Command. This was sent in response to the January 2020 request discussed above. However, the October 2020 response was the same as their November 2019 response, which prompted the Board remand in May 2020 for additional development of the claim. Therefore, the Board has concluded that it may proceed with appellate consideration of the thyroid condition, to include Hashimoto’s thyroiditis and hypothyroidism, due to ionizing radiation without prejudice to the Veteran. See 38 C.F.R. § 19.31. The record reflects that the Veteran received a letter indicating he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the Veteran did not have a pending hearing request. He provided testimony in a hearing with a Veterans Law Judge in April 2017. A transcript of that hearing is in the evidence of record and was relied on in adjudicating the claim. Neither the Veteran nor his representative have requested another hearing. Analysis Entitlement to service connection for a thyroid condition, to include Hashimoto’s thyroiditis and hypothyroidism, due to ionizing radiation exposure, is denied. Entitlement to VA compensation may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation, a Veteran must 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 be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To show 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 diseases that are presumed to have been the result of in-service radiation exposure. See 38 C.F.R. § 3.309(d). Second, under 38 C.F.R. § 3.311, there is a list of “radiogenic diseases” that will be service connected after required agency research. Third, the veteran may establish direct service connection when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). This case does not fall into the first category, because the Veteran does not have a disease specific to radiation-exposed veterans that would automatically be presumed service-connected under 38 C.F.R. § 3.309(d). The Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if he had a radiogenic disease and/or claimed exposure to ionizing radiation in service. The Veteran does not have any of the specific “radiogenic diseases” listed under 38 C.F.R. § 3.311(b)(2). However, he has provided evidence otherwise that his claimed conditions may be “radiogenic diseases,” and so the development procedures of section 3.311 still apply. See 38 C.F.R. § 3.311(b)(4). The procedure under § 3.311 is to forward the claim to the VA Under Secretary for Benefits for further consideration, who may request an advisory medical opinion from the Under Secretary for Health. In forming a final opinion as to whether a Veteran's disease resulted from ionizing radiation exposure, the Under Secretary for Benefits may consider: the probable dose, relative sensitivity of involved tissue to induction, the Veteran's gender and pertinent family history, the Veteran’s age at the time of exposure, time-lapse between exposure and onset of disease, and the extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to the development of the disease. See 38 C.F.R. § 3.311(e). The Veteran contends that he was exposed to radiation while working as an Administrative Specialist with the 583rd Ordinance Company in Germany. He worked for two and a half years as part of a maintenance unit performing repairs on nuclear weapons. He was responsible for handling tools used for repairs on the nuclear weapons. He helped to decontaminate the equipment as well as log equipment in/out. As an Administrative Specialist, he reported having a small, confined workspace where his co-workers had to squeeze by his desk. This put him in close contact with people working directly on the nuclear weapons. The Veteran reported that he never wore protective gear. Additionally, he reported three to four evacuations due to possible hazardous conditions at the worksite. The record does not contain a DD Form 1141, record of occupational exposure to radiation, for him, which would provide documentation of any radiation exposure. The Veteran’s service treatment records show a normal entrance examination. He reported excellent health. These records are otherwise negative for any diagnosis, complaint, or abnormal findings referable to a thyroid condition, to include Hashimoto’s thyroiditis and hypothyroidism. In February 1984, the Veteran waived a separation examination. In March 2010, the Veteran was diagnosed with hypothyroidism. He had elevated thyroid peroxidase (TPO) antibodies in July 2012, which suggested to his doctors underlying Hashimoto’s thyroiditis. C.C. (ARNP) was the Veteran’s primary care physician from 2010 to 2013. In August 2010, C.C. opined she and Dr. M agreed it was possible the Veteran’s thyroid condition was a result of his ionizing radiation exposure while in the military. In December 2013, C.C. opined it was possible and even likely that the Veteran was exposed to radiation in service but that she had no direct knowledge or documentation to confirm this. There were many potential factors that precipitated Hashimoto’s one of which was radiation exposure. She stated, “I think that Mr. [REDACTED] hypothyroidism is a result of Hashimoto’s thyroiditis, and can be a result of his radiation exposure during his military service.” This opinion was based on her review of records from 2010-2013, his history and examination, and review of available medical resources and colleagues. Finally, in May 2020 C.C. opined that while she could not say definitively that the Veteran’s hypothyroidism was due to his work in the Army, she thought it was possible that his reported exposure to nuclear radiation had contributed to his thyroid condition. In May 2012, K.B. (MD) noted the Veteran had asked about the etiology of his hypothyroidism. K.B. opined she could not say for certain whether the condition could be related to previous radiation exposure. W.B. submitted a buddy statement in February 2013. W.B. reported meeting the Veteran in 1982 in Handorf Kaserne in Muenster, Germany. W.B. was initially assigned to the Engineer Platoon, Atomic Demolition Munitions Specialist. His platoon would go to the site where the Veteran pulled most of his duty. W.B. indicated that he never discussed the Veteran’s duties because of the confidential nature of his assignment. He did remember the site was evacuated on several occasions because his friend would either come home early or need to stay late. On one occasion, W.B. recalled the Veteran needing to be sprayed down before he left. G.A. submitted a buddy statement in March 2013. G.A. reported he was the Veteran’s roommate for a period when they were stationed in Handorf Kaserne in Muenster, Germany in 1982. He recalled instances where the Veteran’s work site was closed. He presumed these closures occurred for emergency situations and that the people who worked there were treated for conditions they might have encountered. The work at that site was classified. In September 2019, the Veteran submitted articles in support of his claimed thyroid disability. One document provided descriptions of VA diagnostic codes related the thyroid conditions. Another document listed military bases with contamination issues. The American Thyroid Association article entitled “Nuclear Radiation and the Thyroid,” described how the thyroid absorbs iodine from the bloodstream. It is the most sensitive part of the body to radiation and cannot distinguish between stable iodine and radioactive iodine. In July 2019, the DTRA responded to the RO’s request for verification of participation in radiation risk activity. DTRA indicated the Veteran may have participated in a radiation risk activity while serving with the 583rd Ordinance Company in Germany. However, a review of his service record and Census Report, Vol. IV, 1981 through 1985 (DNA Report 6330F-4) showed no participation in US underground nuclear weapons tests by the Veteran. At the suggestion of DTRA, an inquiry was sent to the US Army Medical Command regarding potential exposure at a nuclear duty position because this office was responsible for maintaining the occupational dosimetry data for Army personnel. A response from the US Army Medical Command dated November 2019 was received in January 2020. D.M., a Health Systems Specialist, reported based on the Veteran’s description of duties it appeared he did not meet any of the criteria for participation in a radiation risk activity. At the request of the VA Director of Compensation Service an opinion was obtained from the Chief Consultant, Post Deployment Health Services in August 2020. This opinion was prepared by a health physicist and reviewed by a physician. The opinion noted that the Veteran’s service records did not contain a DD Form 1141. DTRA’s review indicated he did not participate in US underground nuclear weapons tests. Additionally, the US Army Medical Command found that he did not meet any of the criteria for participation in a radiation risk activity. The author of this opinion noted he had considered C.C.’s statements that it was possible the Veteran had thyroid disease as a result of his exposure to ionizing radiation in service. These statements were not found to use sound scientific and medical evidence because they did not discuss the Veteran’s actual radiation dose and how that dose might be causative for the claimed thyroid condition. Regarding measurement of the dose, the Chief Consultant opined when an occupationally exposed worker is not expected to receive a radiation dose exceeding 0.5 rem, monitoring is not required. A dose of 2.0 rem (total effective dose equivalent) was assigned to the Veteran (0.5 rem per year x four calendar years of service). This gives the Veteran the benefit of the doubt as opposed to the Army’s lack of dose monitoring records. The author cited the Health Physics Society, in their position statement PS010-4, Radiation Risk in Perspective, revised February 2019, noting 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.” The author concluded since the Veteran’s potential radiation dose of 2.0 rem did not exceed 100 mSv (10 rem) above natural background. It was unlikely that his thyroid condition to include hypothyroidism and Hashimoto’s thyroiditis were caused by ionizing radiation exposure during military service. Subsequently, the August 2020 advisory opinion from the VA Director of Compensation Service, upon review of the research and opinion discussed above concluded there was no reasonable possibility that the Veteran’s thyroid condition could be attributed to ionizing radiation exposure during his military service. After careful review, the Board finds the August 2020 opinion from the Chief Consultant highly probative. First, the Veteran’s exposure levels were assessed to be relatively low, confirmed by analysis of the Veteran's specific occupational duties as an Administrative Specialist. Second, given the very low exposure levels the VA advisory opinion found a correlation to the claimed disabilities to be unlikely on the basis that exposure was insufficient as confirmed by a review of the record and medical literature. By contrast, C.C.’s opinion is not based on a well-supported estimate of radiation exposure in service. She identifies radiation as the possible cause of the Veteran's disabilities because of no other ready explanation. However, the regulation authorizing radiation compensation claims, § 3.311, requires radiation dose estimates to be as accurate as possible. The requirement for accurate radiation dosage levels is built into the regulations and is considered in evaluating claims. C.C.’s conclusions and opinion do not persuasively demonstrate that the Veteran's exposure to ionized radiation resulted in the claimed disabilities. Moreover, C.C. does not appear to be a radiation exposure expert, nor did does it appear that she reviewed the claims file or provided reasoning for a connection between radiation exposure and the claimed disabilities. As a result of the above findings, the Board finds that entitlement to service connection for a thyroid condition, to include Hashimoto’s thyroiditis and hypothyroidism, due to ionizing radiation exposure is not established pursuant. Although it is conceded that the Veteran was exposed to ionizing radiation in service and dose estimates were obtained, the probative opinions of record reflect that it was unlikely that the Veteran's disabilities were attributable to this exposure. Accordingly, his claims must now be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The medical evidence of record shows current diagnosed disabilities of hypothyroidism and Hashimoto’s thyroiditis. As was discussed in detail above, it is conceded that the Veteran was exposed to ionizing radiation in service. However, there is no causal relationship between the Veteran’s present disabilities and his exposure to radiation in service. The Board notes again that the Veteran’s service treatment records were silent for complaints of thyroid issues. Furthermore, there is no competent evidence or opinion otherwise suggesting that a medical nexus exists between the current thyroid disabilities and the Veteran’s service. As noted above, C.C., the Veteran’s private provider, opined in August 2010, December 2013, and May 2020 that while she could not say definitively that the Veteran’s thyroid condition was due to his work in the Army, she thought it was possible that his reported exposure to nuclear radiation had contributed to his thyroid condition. C.C.’s opinion was not based on a well-supported estimate of radiation exposure in service, she does not appear to be a radiation exposure expert, nor could she cite to documentation confirming the Veteran’s exposure to radiation in service. C.C.’s conclusions and opinions do not persuasively demonstrate that the Veteran's exposure to ionized radiation resulted in the claimed disabilities. In August 2020, the Chief Consultant, Post Deployment Health Services concluded since the Veteran’s potential radiation dose of 2.0 rem did not exceed 100 mSv (10 rem) above natural background it was unlikely that his thyroid condition, to include hypothyroidism and Hashimoto’s thyroiditis, were caused by ionizing radiation exposure during military service. The Board assigned positive probative weight to the August 2020 opinion because it considered the Veteran’s medical history, the nature of his exposure to ionizing radiation, and the radiation dose information when finding that it was unlikely that his thyroid condition could be attributed to ionizing radiation in service. Accordingly, the preponderance of the evidence weighs against the finding of service connection for the Veteran’s thyroid condition on a direct basis. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.