Citation Nr: 21067501 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 13-16 202 DATE: November 4, 2021 ORDER Entitlement to service connection for thyroid cancer to include as due to ionizing radiation exposure is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his thyroid cancer is a result of his exposure to ionizing radiation during his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for thyroid cancer to include as due to ionizing radiation exposure have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1974 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs VA Regional Office. In June 2016, the Veteran testified before the undersigned Veterans Law Judge during a Board hearing. This matter was previously before the Board in January 2017 but was remanded for additional development. In a May 2021 supplemental statement of the case (SSOC), his claim was again denied. This matter is again before the Board for adjudication. 1. Entitlement to service connection for thyroid cancer to include as due to ionizing radiation exposure is granted. The Veteran seeks service connection for his thyroid cancer. Specifically, he asserts that his thyroid cancer is related to radar system and radiation exposure as a jet engine propulsion mechanic and technician. He also asserts that it is related to his dental x-ray's during service. Moreover, he further asserts that his disability is related to ionizing radiation exposure during his period of service in Germany from 1986 to 1990 following the Chernobyl nuclear disaster in 1986. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). As relevant to this claim, service connection for a disability that is claimed to be attributable to ionizing radiation exposure during service may be established in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, certain diseases may be presumptively service connected under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d) for a radiation-exposed Veteran. A "radiation-exposed" Veteran is one who participated in a listed radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving an atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, internment as a prisoner of war (POW) in Japan during a specified period, or service at certain specified sites. 38 C.F.R. § 3.309 (d)(3). Given the Veteran's service dates and locations, he does not meet the criteria for this first category. Thyroid cancer is a listed disease under 38 C.F.R. § 3.309 (d). However, while acknowledging the Veteran's exposure to radiation, the Board finds that he is not a "radiation-exposed" Veteran within the meaning of the regulation as there is no evidence, and he does not contend, that he participated in any of the radiation-risk activities listed by the regulation. As he is not a "radiation-exposed" Veteran, the presumptive provisions of U.S.C. § 1112(c) and 38 C.F.R. § 3.309 (d) are not applicable. Second, radiogenic diseases may be service connected under 38 C.F.R. § 3.311, which does not provide presumptive service connection, but rather outlines a procedure to be followed for adjudication purposes. Medical opinions are ultimately the criteria upon which service connection rests under this regulation. The provisions apply when: (1) a Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a specified period. For cancer, the disease must have manifested five years or more after exposure. 38 C.F.R. § 3.311 (b)(5). If these requirements are met, a request will be made for records regarding radiation exposure and the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the Veteran's disease resulted from radiation exposure during service. 38 C.F.R. § 3.311 (b). Third, direct service connection can be established by showing that the disability being claimed was incurred during or aggravated by services. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Here, the Veteran's service treatment records are absent for any treatment for a thyroid condition during service and upon separation. However, the Veteran's military personnel record reflects that he was stationed in Germany from 1986 to 1990. As the Veteran asserts that his current thyroid disability is related to ionizing radiation fallout after the Chernobyl nuclear accident in 1986, the Board will consider his claim under 38 C.F.R. § 3.311(c). Accordingly, the Board finds that he (1) was exposed to ionizing radiation during his service as stated by the Under Secretary of Health in a May 2021 Memorandum, (2) he subsequently developed thyroid cancer, a radiogenic disease, and (3) the cancer manifested five years or more after exposure (here, it manifested in 2006, therefore approximately 16 years after exposure). Thus, in compliance with 38 C.F.R. § 3.311 (c), a dose estimate and advisory medical opinion by the Under Secretary of Benefits was requested. In a May 2021 memorandum, the Director for Post-9/11 Environmental Health Program considered the Veteran's reported exposure to radar system, radiation through x-rays, and ionizing radiation from the Chernobyl nuclear disaster while stationed in Germany. See May 6, 2021 VA Memo. Based on estimates provided from the United States Air Force Medical Support Agency, the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), and calculation of in-service dental radiation dose, it was calculated that the Veteran's total radiation dose was 1.2771 rem. However, it was noted that below levels of about 100 mSv (10 rem) above background from all sources combined, the observed radiation effects in people were not statistically different from zero. It was further noted that based on the consensus of scientific advisory bodies, there are no long-term effects, to include cancer, from low-level exposure to radiofrequency radiation. In conclusion, the Director for Post-9/11 Environmental Health Program stated that because the Veteran's assigned lifetime total ionizing radiation dose of 1.2771 rem did not exceed 0.1 Sv (10 rem) above natural background, it is unlikely that his thyroid cancer was caused by exposure to ionizing radiation and/or non-ionizing radiation (RFR) during military service. In a May 2021 advisory opinion, the Under Secretary for Compensation Services restated that the Veteran's total ionizing radiation did not exceed 0.1 Sv (10 rem) above natural background. See May 11, 2021 VA Memo. As such, it was determined that it was unlikely his thyroid cancer was caused by exposure to ionizing radiation and/or non-ionizing radiation during service. The Under Secretary for Compensation Services cited to the Health Physics Society and National Academies' discussions indicating that doses below 10 rems is not a statistically significant increased risk in disability or disease from radiation. As such, the likelihood of such disability or disease due to ionizing radiation in service for a veteran with less than 10 rems of exposure is unlikely. The Under Secretary for Benefits further states that the private medical opinions by his treating endocrinologists were not supported by the specific amount of radiation to which the Veteran was actually exposed. The Veteran was provided with a VA examination in March 2013 to determine the etiology of his disability, and the VA examiner opined that his thyroid cancer was less likely than not related to his military service. The VA examiner stated that while he had multiple episodes of upper respiratory complaints and was treated, no thyroid mass was detected. He also noted that his one-time cervical adenopathy was noted which is consistent with upper respiratory infection. The VA examiner further stated that his thyroid cancer was diagnosed 16 years after separation from military service and that it was a very long period to attribute his throat problem to service. The Veteran also provided three private medical opinions in support of his claim. In a December 2013 private medical opinion, his endocrinologist Dr. E. W. stated that it is it is well known that the Chernobyl disaster has been causally related to an increased in evidence of thyroid cancer to exposed person. As the Veteran was in Germany for that time, coupled with the particularly aggressive nature of his thyroid cancer, it was reasonable to postulate that there is a high probability that his thyroid cancer is related to the Chernobyl disaster. In another December 2013 private medical opinion, Dr. W. B. stated that based upon review of the Veteran's duty station, proximity to the Chernobyl nuclear accident, and his knowledge and treatment of the Veteran's cancer, it was at least as likely as not that his thyroid cancer was a result of radiation exposure from Chernobyl. In a more recent private medical opinion in June 2021, the Veteran's endocrinologist, Dr. L. H., restated that there is a known associated between radiation fallout and development of iodine isotopes and incidents of thyroid carcinoma. While the degree of exposure is not quantifiable based on air dissemination and subsequent exposure, he stated that there is documented increased concerns for thyroid malignancy in not only the Ukraine but throughout pockets of Germany and other European nations. As such, he opined that it is conceivable that the Veteran's exposure may have been a contributing factor in not only the development of thyroid cancer but the recognition of a more aggressive form of malignancy. The Veteran further submitted a research article in December 2013 titled, 20 years after Chernobyl-A Radiation Protection Perspective. Again, in July 2020, he submitted another research article titled, Health effects of Chernobyl 25 years after the reactor catastrophe in July 2020. While the December 2013 research articles discuss health effects caused by radiation exposure in Germany after the Chernobyl nuclear accident, to include thyroid cancer, the research only focus on development of thyroid cancer in Ukraine, Belarus, and Russia. Pertaining to health effects related to ionizing radiation exposure in Germany, both research articles only focus on the development of birth defects, down syndrome, infant mortality, leukemia, neuroblastoma, and cleft lip and palate. Notwithstanding those findings, both research articles indicate that radioactive fallout from the Chernobyl nuclear accident did reach Germany. In July 2021, he submitted an in-depth expert opinion in support of his claim. Upon a review of the Veteran's duty station, proximity to the Chernobyl nuclear meltdown, his medical history, current examination, and factual scientific literature concerning the migration of radioactivity in peer-reviewed and internationally accepted radioactive monitoring methodology, to include evidence provided by the Director of Compensation Services, the Undersecretary of Health and the VA, the expert stated that it is at least as likely as not that the Veteran's thyroid cancer resulted from Chernobyl radiation exposure during his military service in Germany. First, the expert states the Veteran was exposed to more ionizing radiation than initially calculated by the VA. Specifically, the expert stated he was exposed to additional ionizing radiation as his military duties in Germany required that he repair small gas turbine engines from small modular power plants that had been located anywhere throughout Germany. The expert states that these gas turbines were known to ingest and concentrate airborne radiation and that he was exposed to small modular power plants turbines that were radioactively contaminated. The expert further referenced studies and data indicating an increase in thyroid cancer in areas with much lower radiation exposure than predicted by the VA. For example, the expert referenced a 2016 peer-reviewed study which indicates that thyroid cancer in Austria doubled since 1986. He also cited to another study suggesting that thyroid cases are rising by 2.6 percent a year in Czech Republic. Notably, the expert referenced the seventh publication of the National Academies of Science Biological Effects of Ionizing Radiation (BEIR) report which concludes that even at low dose, there is a linear dose-response relationship between exposure to ionizing radiation and the development of solid cancers in humans. The report further indicated that it is unlikely that there is a threshold below which cancers are not induced, but that at low doses the number of radiations induced cancer will be small. Based on consideration of all the evidence of record, the Board finds that there are conflicting medical opinions as well as scientific research regarding a causal relationship between the development of thyroid cancer and exposure to ionizing radiation fallout in Germany. With respect to the medical opinions of record, the Board finds that the March 2013 VA medical opinion is not as probative as the Veteran's three private medical opinions. While the March 2013 VA examiner rendered an opinion against his claim, the VA examiner based the medical opinion solely on no contemporaneous diagnosis of thyroid cancer until years after service. The VA examiner also does not consider the Veteran's reported in-service exposure to ionizing radiation exposure during his service in Germany following the Chernobyl nuclear accident. As such, the Board affords little probative weigh to the March 2013 VA medical opinion. To the contrary, the December 2013 and June 2021 private medical opinions by his endocrinologist considered the nature of his thyroid cancer as well as his exposure to ionizing radiation exposure in Germany. As such, the Board assigns more probative weight to the private medical opinions of record. Pertaining to the advisory opinions from the Director of Compensation Services, dose estimate opinion provided by the Under Secretary of Health, and the June 2021 private expert opinion regarding the health effects related to ionizing radiation exposure after the Chernobyl nuclear accident, the Board finds that they are all equally probative. The Board acknowledge that the Director of Compensation Services and the Director of Post-9/11 Environmental Health Program provides that it is less likely than not that his thyroid cancer was caused by his exposure ionizing radiation because his dose estimate was below levels of 100 mSv above background from all sources combined. However, as mentioned by the June 2021 private expert, the seventh publication of the National Academies of Science BEIR report cited in the June 2021 private expert opinion, ultimately there will be some risk, even at low doses, although the risk is small. The Board notes that in evaluating the advisory opinion and expert opinion, the law does not require that a nexus be established definitively or with absolute certainty. Rather, there need only be an approximate balance of positive and negative evidence. As such, the Board finds that the May 2021 memorandum from the Under Secretary for Health, May 2021 advisory opinion from the Director of Compensation Services, and June 2021 private expert opinion are all equally probative. Regarding lay evidence, the Board notes that although the Veteran is competent to report a formally diagnosed condition such as thyroid cancer; he is not competent to relate his cancer to active duty ionizing or non-ionizing radiation exposure. He is a layperson and lacks the training/expertise to opine competently on a medical question such as that presented in the instant case (i.e., whether in the absence of a showing of onset in service and post-service continuity of cancerous symptoms first documented many years after service/exposure to various toxins therein may be related to cancer rather than to intervening etiological factors including smoking). Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) Based on the foregoing medical opinions, advisory opinions, and scientific literature, the Board ultimately finds the evidence to be at least in equipoise as to whether the Veteran's current thyroid cancer is related to ionizing radiation fallout during his service in Germany following the Chernobyl nuclear accident. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for thyroid cancer is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.