Citation Nr: 21062977 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-31 395 DATE: October 12, 2021 ORDER Entitlement to service connection for hypothyroidism to include fatigue, weight gain, hypersomnia and thinning hair is granted. Entitlement to service connection for multiple sclerosis (MS) is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to service connection for hypertension is remanded. INTRODUCTION The Veteran served on active duty from January 1986 to December 1993. In August 2019, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in November 2019 and December 2020, the above-noted issues were remanded for further development. The case has since been returned for additional appellate review. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the evidence indicates her hypothyroidism was as likely as not due to her in-service exposure to radiation. 2. Resolving all reasonable doubt in the Veteran's favor, the evidence indicates her multiple sclerosis was as likely as not due to her in-service exposure to radiation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypothyroidism have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. 2. The criteria for entitlement to service connection for multiple sclerosis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Because the Board is granting the Veteran's claims, any error committed with respect to those claims is harmless. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). Certain specified disabilities becoming manifest in a "radiation-exposed veteran" shall be service connected. 38 U.S.C. § 1112 (c)(1), (2); 38 C.F.R. § 3.309 (d)(1), (2). The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." 38 U.S.C. § 1112 (c)(3)(A); 38 C.F.R. § 3.309 (d)(3)(i). The term "radiation-risk activity" means onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki during the period beginning on August 6, 1945, and ending on July 1, 1946; 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; or service at certain gaseous diffusion plants before February 1, 1992 and certain service on Amchitka Island, Alaska, before January 1, 1974. 38 U.S.C. § 1112 (c)(3)(B); 38 C.F.R. § 3.309 (d)(3)(ii). There is no indication that the veteran had the types of in-service exposure to ionzing radiation listed above, and indeed, she does not contend otherwise, and thus presumptive service connection under 38 C.F.R. § 3.309 (d) is not available. Although hypothyroidism and MS are not among the disabilities subject to presumptive service connection on a radiation basis under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d), they are potentially "radiogenic" diseases under 38 C.F.R. § 3.311 (b). See 38 C.F.R. § 3.311 (b)(2)(xvii). However, the demonstration of a potentially radiogenic disease and exposure to radiation during service do not necessarily establish entitlement to service connection. The Board must consider all relevant factors, including the amount of radiation exposure in determining whether the record supports the contended etiologic relationship. Factual Background and Analysis The veteran's DD Form 214 and official military personnel file (OMPF) show her military occupational specialty (MOS) was naval corpsman/cardiovascular technician, and the Veteran contends that she developed hypothyroidism and MS as a consequence of her exposure to radiation while performing those duties in service. In March 2020 the RO obtained a dose estimate from the U.S. Navy Environmental Health Center (NEHC). However, the dose estimate provided by the NEHC was expressly limited to the period from January 1991 to November 1993. The NEHC concluded the Veteran was exposed to only .381 Roentgen Equivalent Man (REM) of radiation during that period; however, the Veteran reports radiation exposure throughout her period of active duty, with the greatest reported exposures occurring prior to 1991. She has also disputed this calculation, which was based purely on her radiation badge readings at that time, as her badge was located underneath her personal protective apron, but she contends other parts of her head and neck were unprotected. In a subsequent March 2021 memorandum, the VA Environmental Health Program Director responded to a request for review of the Veteran's record. The physician and a staff health Physicist noted the March 2020 report from the NEHC, but alternatively concluded the Veteran was exposed to a dose of radiation during service of 6.874 REM. The Director acknowledged his calculation allotted for additional exposures not recognized by the NEHC, which resulted in a calculated dose roughly 20 times higher than the NEHC's. The Director stated that although this calculation gave great benefit of the doubt to the Veteran, the Health Physics Society concluded in a February 2019 report that unless a person has exposures of 10 REM (from all sources combined) above background, the effects are not statistically different than zero. Since the Veteran's calculated dose of 6.874 REM did not exceed 10 rem, the Director concluded her claimed disabilities were unlikely caused by her exposure to radiation in service. In an April 2021 advisory opinion, the VA Compensation Service Director agreed with the above medical opinion. The Compensation Service Director stated that as a result of the medical opinion, and following review of the evidence in its entirety, it was also her opinion that it was unlikely the Veteran's claimed disabilities were the result of exposure to ionizing radiation in service. However, by way of June 2021 private medical opinions, a former senior medical advisor to the VA and director of the military public health department for the Department of Defense disputed the findings of the March 2021 VA Environmental Health Program Director. The Physician explained that she is an expert in occupational/environmental hazards exposures, to specifically include radiation exposures. In sum, the Physician found the in-service radiation exposure report to be incomplete. She also cited to several more recent medical studies, which indicate various medical procedures performed by the Veteran likely resulted in higher radiation exposure than thought in previous years. As a result of these more recent studies, and consideration of the Veteran's lay statements, the Physician found that without considering portable x-rays and CT scanners the Veteran would have had a dose of 17-18 REM in three years, and that an additional .16 REM could be factored in when considering her exposure to radiation from x-rays and CT scans. This Physician then cited to several additional medical journal articles and scientific studies, which found exposure to radiation can cause both hypothyroidism and MS. Following her comprehensive analysis of the facts and relevant medical studies in this case, the Physician concluded the Veteran's hypothyroidism and MS were as likely as not caused by her exposure to radiation while serving as a hospital corpsman and cardiovascular technician. Here, it is uncontested that the Veteran was exposed to some degree of radiation in service. In this respect, two highly qualified medical experts have reached divergent calculations with respect to the amount of radiation the Veteran was exposed to in service. Though the Board does find the report provided by the VA Environmental Health Program Director to be probative, the Board has also afforded the conclusions provided by the private expert in this case great weight, as her conclusions were based on the most up to date medical science. In sum, the Board finds the evidence both in favor and against the Veteran's claims to be in relative equipoise. In such instances, the regulations are clear that the benefit of reasonable doubt should be resolved in the Veteran's favor. See 38 C.F.R. § 3.102. Therefore, the Board concludes service connection is warranted for the Veteran's hypothyroidism and MS. REASONS FOR REMAND In the course of this appeal period the RO has not obtained VA examinations or medical opinions addressing the Veteran's diabetes mellitus or hypertension claims. VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. A review of the Veteran's private treatment records from the Oklahoma City Indian Clinic show she has been diagnosed with and treated for diabetes and hypertension. Additionally, in her initial January 2014 claim, the Veteran asserted her diabetes was secondarily caused by her hypothyroidism, and her hypertension was consequentially related to her diabetes. Based on the foregoing, the Board finds VA examinations and medical opinions are warranted. Accordingly, these matters are REMANDED for the following actions: 1. Obtain a VA examination by an examiner with sufficient experience and expertise to address the etiology of the Veteran's claimed diabetes mellitus and hypertension disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records, medical journal articles provided by the Veteran, and lay statements, the examiner should state an opinion with respect to whether the Veteran's diabetes or hypertension at least as likely as not (a 50 percent probability or greater) originated during her period of active service or are otherwise etiologically related to her active service. The appropriate examiner should also state an opinion with respect to whether the Veteran's diabetes mellitus at least as likely as not (a 50 percent probability or greater): a) was caused by her service-connected hypothyroidism; or b) was worsened to any degree by her service-connected hypothyroidism. The appropriate examiner should also state an opinion with respect to whether the Veteran's hypertension at least as likely as not (a 50 percent probability or greater): a) was caused by her diabetes mellitus; b) was worsened to any degree by her diabetes mellitus; The examiner(s) must provide a complete rationale for all proffered opinions. In this respect, the examiner(s) must discuss and consider the Veteran's competent lay statements. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.