Citation Nr: 21004947 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-23 024 DATE: January 28, 2021 ORDER Entitlement to service connection for hypothyroidism, claimed as non-malignant thyroid disease, to include as a result of exposure to ionizing radiation, is denied. FINDING OF FACT Hypothyroidism did not have its onset in service, did not manifest to a compensable degree within one year of service discharge, and is not otherwise related to active service, to include as due to ionizing radiation. CONCLUSION OF LAW The criteria for service connection for hypothyroidism, claimed as non-malignant thyroid disease, as a result of exposure to ionizing radiation, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1948 to October 1953. In June 2018, the Veteran provided testimony at a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In August 2018, January 2020, and most recently in June 2020 the Board remanded the claim for further development. Most recently, the Board remanded the claim for referral to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c) for claims based on exposure to ionizing radiation. The Board finds there was substantial compliance with this development. The claim now returns to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as hypothyroidism, an endocrinopathy, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for a disability based on ionizing radiation exposure during service may be established in one of three ways: (1) presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) for radiation-exposed veterans, (2) directly service connected after specified development procedures are conducted under the special framework of 38 C.F.R. § 3.311 if the claimed condition is a radiogenic disease, or (3) directly service connected by showing that the disease was incurred in or aggravated by service. A "radiation-exposed Veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. The term "radiation-risk activity" includes (1) on-site participation in a test involving the atmospheric detonation of a nuclear device; (2) the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; (3) internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; and (4) certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 C.F.R. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). The term "occupation of Hiroshima or Nagasaki, Japan, by United States forces" means official military duties within 10 miles of the city limits either Hiroshima or Nagasaki, Japan." See 38 C.F.R. § 3.309(d)(3)(vi). A veteran is entitled to special development under 38 C.F.R. § 3.311 if such veteran has a radiogenic disease as listed under 38 C.F.R. § 3.311(b)(2)(i) (xxiv), and such disease was manifested during specified periods as defined in 38 C.F.R. § 3.311(b)(5). In all claims based on participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946, dose data will be requested from the Department of Defense. 38 C.F.R. § 3.311(a)(2)(ii). After such development, if it is determined that the Veteran was exposed to ionizing radiation and subsequently developed a radiogenic disease that manifested during the specified period, the claim should be forwarded to the Under Secretary for Benefits for consideration of the claim. The Under Secretary for Benefits, after a consideration of the factors of the case, may then request an advisory medical opinion from the Under Secretary for Health. Entitlement to service connection for hypothyroidism, claimed as non-malignant thyroid disease, as a result of exposure to ionizing radiation. The Veteran is seeking entitlement to service connection for hypothyroidism, claimed as non-malignant thyroid disease, related to his exposure to ionizing radiation. See 38 C.F.R. § 3.311(b)(2) (listing non-malignant thyroid nodular disease as a “radiogenic disease”). The Veteran does not have a specific diagnosis of non-malignant thyroid nodular disease. Rather, he is diagnosed with hypothyroidism as confirmed by an examiner in an August 2019 Disability Benefits Questionnaire and shown in a July 2013 private medical record. The Veteran contends his hypothyroidism is a result of exposure to ionizing radiation during Operation Upshot-Knothole nuclear test. The Veteran stated that while in a trench, he was told to stand up when he saw a flash and start walking towards ground zero. He reported they were under the fireball and dust in about five minutes. He stated that after the blast, soldiers were notified that they were stationed too close to the blast. The Veteran contends he first experienced symptoms prior to discharge, and that soon after discharge, he lost muscle and weight. Currently, he experiences loss of energy, fatigue, loss of sexual appetite, symptoms of erectile dysfunction, and lethargy. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for hypothyroidism, to include as due to ionizing radiation exposure. The reasons follow. Initially, the Board notes that hypothyroidism is not on the list of presumptive diseases specific to radiation-exposed veterans within 38 C.F.R. § 3.309(d). Thus, service connection is not warranted on this type of presumptive basis. The Veteran was diagnosed with hypothyroidism in July 2013 by Dr. Thomas Scott Gilmer. The Veteran’s exposure to ionizing radiation has been conceded by VA. Most service treatment records were destroyed in a fire, but the September 1950 reenlistment and October 1953 discharge Reports of Medical Examination (RME) are in the file. The RMEs do not show a diagnosis of hypothyroidism or related symptoms, and all bodily systems were clinically evaluated as normal. In an August 2019 opinion, a VA examiner provided a negative nexus opinion. The examiner stated that the Veteran does not have a diagnosis of autoimmune thyroid disease, which would require a test for Thyroglobulin Antibodies (TgAb) showing antibodies greater than 200 IU/ml. The examiner concluded the Veteran’s hypothyroidism was less likely than not related to ionizing radiation exposure. As stated in the January 2020 remand, the Board found this opinion was inadequate; however, this opinion put the Board on notice of what testing was needed to determine whether the Veteran has an autoimmune thyroid disease. Thus, the Board remanded the claim have the Veteran undergo that testing and obtain an opinion. The March 2020 VA examiner performed the test and documented the Veteran’s TgAb as 61.4, which the examiner wrote indicates that the Veteran does not have autoimmune thyroid disease. The examiner noted that if the Veteran was going to develop autoimmune thyroid disease and/or thyroid cancer, it typically occurs within the first eight to 12 years after initial radiation exposure. The examiner wrote the Veteran was not diagnosed with hypothyroidism until 60 years after service. The examiner concluded that given the long time between diagnosis and ionizing radiation exposure and the fact that the Veteran does not have autoimmune thyroid disease or thyroid cancer, the examiner concluded the Veteran’s hypothyroidism is less likely than not the result of ionizing radiation exposure in service. The Board affords the March 2020 VA medical opinion high probative value, as the examiner reviewed the file, completed an in-person examination, and provided an opinion that was based on the specific facts of the Veteran’s circumstances and medical principles. In December 2020, the VA Director of Compensation Service sought an advisory opinion from the VA Under Secretary for Health. The same month, the Director of the Post 9/11 Era Environmental Health Program reviewed the claims file and prepared a dose estimate and medical opinion. The medical opinion was prepared by a physicist and reviewed by a medical doctor. Based upon Defense Threat Reduction Agency estimates, the physicist found that the Veteran's in-service radiation exposure, including total external gamma and skin doses, was estimated as follows: total external gamma dose (16 rem), external neutron dose (0.5 rem), internal committed alpha dose to the prostate (0 rem), and upper bound committed beta plus gamma dose to the prostate (1 rem). The Veteran provided a copy of his Radiation Exposure History from the National Nuclear Security Administration of the United States Department of Energy. The document showed that he received a whole-body gamma dose of 40 mrem (0.040 rem) in 1953 at the Nevada Test Site. The total of these doses was found to be not more than 17.54 rem; therefore, the dose to the thyroid is not more than 17.54 rem. The physicist noted that while it was well known that thyroid cancer and benign nodular thyroid disease demonstrated a dose response, the literature is contradictory on whether hypothyroidism may be caused by exposure to radiation from nuclear devices. He addressed some of the medical literature addressing this issue. The physicist noted that a study showed that persons under 30 years of age at the time of exposure had a risk rate of 1.24 at a dose of 100 rem, and that the Veteran’s total thyroid dose of 17.54 rem was “well below this threshold dose.” The physicist added that atomic bomb survivors under 30 years of age (noting that the Veteran was 22 years old) at time of exposure had shown a dose-dependent excess of thyroid disease, defined to include hypothyroidism, but that the excess became evident within 20 years after irradiation, and the Veteran’s disease was not diagnosed until 60 years after his exposure. Based upon the above, the physicist concluded that it was unlikely that the Veteran's hypothyroidism was caused by exposure to ionizing radiation in service. Later that same month, in December 2020, the Director of Compensation Service reviewed the claims file and concluded, based on a review of the evidence, that there was no reasonable possibility that hypothyroidism resulted from exposure to ionizing radiation in service. The Board affords the December 2020 VA advisory medical opinion high probative value because it is based upon the physicist’s review of the claims file, medical literature, and the physicist provided an opinion that is based on evidence in the file and medical principles, where the examiner explained how the facts in the Veteran’s case differed from studies that were performed. Despite the opinions obtained by VA, which determined that the Veteran's hypothyroidism was not related to ionizing radiation exposure while in service, the Veteran may still establish entitlement to service connection by demonstrating that his hypothyroidism is directly related to active service. See Combee v Brown, 34 F.3d 1039. The Veteran testified in June 2018 that Dr. Gilmore told him that his hypothyroidism could have been caused by involvement in nuclear testing. However, this does not establish a nexus to service, as there is no rationale to support the opinion. Thus, at the present time, there is no competent evidence establishing a nexus between the diagnosis of hypothyroidism and service, to include exposure to ionizing radiation. Therefore, the preponderance of the evidence is against a direct nexus between hypothyroidism and service. The Board has considered medical articles the Veteran submitted in an effort to establish a nexus between ionizing radiation exposure and hypothyroidism. In June 2018, the Veteran submitted an article entitled, “Occupational Exposure to Ionizing Radiation is Associated with Autoimmune Thyroid Disease.” The article concludes that occupational exposure to ionizing radiation is related to a risk of autoimmune thyroid disease; however, the article documents autoimmune thyroid disease to a combination of the presence of hypoechogenicity in thyroid ultrasound and TgAb greater than 200UI/ml. The March 2020 antibody test showed the Veteran’s TgAb was 61.4, which the March 2020 examiner wrote indicates that the Veteran does not have autoimmune thyroid disease. Therefore, the article does not establish a nexus between hypothyroidism and ionizing radiation exposure. The other articles submitted in June 2018 relate to disabilities other than a thyroid condition and thus are unrelated to the current claim for service connection for hypothyroidism. In November 2019, the Veteran submitted a link to a National Institutes of Health article entitled, “Exposing the Thyroid to Radiation: A Review of Its Current Extent, Risks, and Implications.” He subsequently submitted the article itself in December 2020. The article primarily discusses the risk of thyroid cancer due to radiation exposure, but it does go on to document that “cancer is not the only thyroid-related disease caused by high-dose radiation. There is a substantial risk of developing hypothyroidism, where the underlying mechanism is felt to be cellular death.” Medical treatise evidence can, in some circumstances, constitute competent medical evidence. However, treatise evidence must not simply provide generic statements that are not relevant to the veteran’s claim. Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, “standing alone,” must discuss generic relationships with such a degree of certainty that, under the facts of a specific case, there is at least plausible causality based upon objective facts, not an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314, 317 (1998). The Board finds that this article is of little probative value because it does not specifically discuss a relationship between the Veteran’s diagnosis of hypothyroidism and his active service with a degree of certainty based on the specific facts of his case. Additionally, the December 2020 medical advisory opinion was based on the specific facts of the Veteran’s case and is more probative. The Veteran was diagnosed with hypothyroidism in 2013 which is 60 years after service discharge. There is no competent evidence of record that shows the Veteran’s hypothyroidism became manifest to a degree of 10 percent or more within one year after the date of separation; therefore, presumptive service connection for hypothyroidism is not warranted. The Board has also considered the testimony of the Veteran where he states he began experiencing symptoms of hypothyroidism prior to discharge. The Veteran is not competent to offer an opinion on whether his fatigue, dry skin, muscle weakness, etc. that he experienced in service is a result of hypothyroidism caused by ionizing radiation exposure. The Board notes the Veteran’s discharge RME shows that clinical evaluations of all bodily systems were normal, and that under the part of the examination report that addresses, “Summary of Defects and Diagnoses,” the examiner wrote, “none.” Additionally, hypothyroidism was not diagnosed until approximately 60 years after service. The diagnosis of hypothyroidism involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and requires specialized training for determinations as to causation, and is, therefore, not susceptible to lay opinions regarding a nexus. Therefore, the Veteran’s opinion is nonprobative evidence. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for hypothyroidism, to include as being due to ionizing radiation exposure. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.