Citation Nr: 21069340 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-18 836A DATE: November 18, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for residuals of thyroid cancer, to include as a result of exposure to ionizing radiation is reopened. Service connection for residuals of thyroid cancer, to include as a result of exposure to ionizing radiation is granted. FINDING OF FACT 1. In a final decision issued in February 2016, the Veteran's claim of entitlement to service connection for thyroid cancer was denied. 2. Evidence added to the record since the final February 2016 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for thyroid cancer. 3. Resolving all doubt in his favor, the Veteran has a current diagnosis of residuals of thyroid cancer which has been related to his active military service. CONCLUSION OF LAW 1. The February 2016 Board decision that denied service connection for thyroid cancer is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for thyroid cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for thyroid cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for residuals of thyroid cancer, to include as a result of exposure to ionizing radiation is reopened. By way of history, a claim for service connection for thyroid cancer was previously denied in a March 2012 rating decision. The Veteran appealed this decision to the Board and, in February 2016 the Board again denied service connection for thyroid cancer. The basis of this denial was that there was no competent evidence that the Veteran's post-service thyroid cancer was due to "excessive radiation exposure" during the Veteran's military service, as the Veteran was not found to have such "excessive" exposure. This decision is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). As noted previously, at the time of the February 2016 Board decision, there was no evidence that the Veteran's post-service thyroid cancer was due to "excessive radiation exposure" during the Veteran's military service as the Veteran was not found to have such "excessive" exposure. Relevant evidence received since the February 2016 Board decision includes three private medical opinions relating the Veteran's thyroid cancer to his military service dated in June 2017 (Dr. S.G.B.), May 2018 (Dr. S.G.R.), and May 2019 (Dr. R.F.H.). Significantly, the June 2017 opinion from Dr. S.G.B. and the May 2018 opinion from Dr. S.G.R. noted that it was at least as likely as not that the Veteran's thyroid cancer was related to his probable in-service radiation exposure even if that exposure was minimal given the rarity of thyroid cancer in men and given the absence of a family history of thyroid cancer. The May 2019 opinion from Dr. R.F.H. noted that it was possible that the Veteran was exposed to "tumorigenic" doses of radiation while working in areas that were not free of radiation as the "official word" would maintain. The Board finds that the evidence received since the prior final decision is new in that it was not previously of record. It is material because it relates to unestablished facts necessary to substantiate the Veteran's claim. Specifically, the newly received evidence provides a medical nexus between the Veteran's thyroid cancer and his, albeit minimal, in-service radiation exposure. As the claim for service connection for residuals of thyroid cancer was previously denied based on the fact that the Veteran was not found to have "excessive" in-service radiation exposure, and the newly received evidence shows that even the Veteran's even minimal in-service radiation exposure was enough to cause his thyroid cancer, this new evidence supports a previously unestablished fact necessary to substantiate the underlying claim and raises a reasonable possibility of substantiating such claim. Therefore, the Board finds that new and material evidence has been received. Accordingly, the claim of entitlement to service connection for residuals of thyroid cancer is reopened. 2. Service connection for residuals of thyroid cancer, to include as a result of exposure to ionizing radiation is granted. The Veteran contends that service connection is warranted for residuals of thyroid cancer, claimed as a result of exposure to ionizing radiation. Specifically, he contends that he was exposed to radiation while stationed at Amarillo Air Force Base in Amarillo, Texas. He believes that his work in proximity to nuclear weapons and the Pantex Nuclear Weapons Plant at Amarillo Air Force Base. He further contends that he was exposed to radiation at Randolph Air Force Base in San Antonio, Texas. The basis for this contention is that he was issued and wore a dosimeter, which measures radiation exposure, while he was stationed at Randolph Air Force Base. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Calusa v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records are negative for an indication of a thyroid disorder. However, his service personnel records do show that he was issued a radiation detection badge from November 1965 to April 1966, suggesting that he was exposed to at least some levels of radiation during his military service. Post-service treatment records show a diagnosis of papillary carcinoma of the thyroid followed by thyroidectomy in March 2011. As above, the basis for the February 2016 Board denial was that there was no evidence that the Veteran's post-service thyroid cancer was due to his "excessive" in-service radiation exposure. Significantly, the Board noted a March 2012 memorandum from the Chief of Contingency Radiation Operations, United States Air Force (USAF) Radioisotope Committee Secretariat, wherein the Chief stated that his office found no external or internal radiation exposure data for the Veteran. He explained that the dosimeter referenced by the Veteran was likely a DT-60 badge, which was commonly distributed to USAF personnel working in nuclear capable organizations for medical readiness purposes. These devices were not sensitive to typical occupational-level exposures; rather, they were designed to record high exposures in the event of a radiation accident, for example a criticality event. The memorandum went on to report that the Air Force Safety Center (AFSC) is unaware of any event where these devices were used to establish radiation exposure for individuals. The Chief further reported that his office sent an inquiry to the AFSC requesting any information that they might have regarding the Veteran's radiation exposure history. The AFSC reviewed the Veteran's official personnel records from the National Personnel Records Center and did not find evidence of duties that would have involved working directly with nuclear weapons systems or components. As such, no dose was given for the Veteran and it was noted that the Veteran's claim that thyroid cancer only resulted from exposure to "excessive" radiation in the military was false. The February 2016 Board decision also addressed the many private medical opinions submitted by the Veteran at that time. Specifically, in a March 2011 letter, the Veteran's treating physician, Dr. S.R., stated that the Veteran had been diagnosed with thyroid cancer and opined that it "may" be a result of the five months the Veteran was stationed near a nuclear facility during his military service. In a September 2013 progress note, Dr. S.R. opined that the Veteran's thyroid cancer was as likely as not due to radiation exposure in military service, and noted that this type of thyroid cancer is indicative of "excessive radiation exposure" and not genetic or other environmental factors. Dr. S.R. stated that this opinion was based on his medical training and known medical literature of radiation exposure causing thyroid carcinoma. Subsequently, in a February 2014 letter, another of the Veteran's treating physicians, Dr. W.C.A., stated that, while the exact cause of his thyroid cancer cannot be determined, given the rarity of thyroid cancer in males (47,790 female cases to 15, 190 male cases as reported in "Cancer Statistics 2014", CA: A Cancer Journal for Clinicians, 7 January 2014) and his assignment where he was exposed to enough radiation to require him to wear a badge, "one must suspect his exposure to be the cause." Dr. W.C.A. even noted that, in his own ten years of active duty, he was never assigned a radiation badge and his assignments varied from Hawaii, to Iran, and to Fort Hood. As above, following the February 2016 Board decision, the Veteran submitted three additional private medical opinions relating the Veteran's thyroid cancer to his military service dated in June 2017, May 2018, and May 2019. Specifically, the June 2017 statement from Dr. S.G.B. noted that the Veteran was issued radiation detective gear in service and also noted that two competent physicians opined that it was at least as likely as not that the Veteran's in-service radiation exposure (even if minimal) is related to the Veteran's thyroid cancer given the rarity of thyroid cancer in men and given the absence of a family history of thyroid cancer. Dr. S.G.B. supported this opinion by citing peer review literature, specifically "Thyroid Cancer and Other Thyroid Diseases and Exposure to Ionizing Radiation" from the Center for Environmental Health Studies (Boston, MA). In the May 2018 statement from Dr. S.G.R. it was noted that the Veteran had no family history of thyroid cancer but did have a history of probable in-service radiation exposure as he was required to wear a radiation monitor during his service. As such, Dr. S.G.R. opined that it was as likely as not that the Veteran's thyroid cancer is due to his radiation exposure. This opinion was noted to be based on the physicians training and knowledge of the medical literature regarding radiation exposure and thyroid exposure. In the May 2019 statement from Dr. R.F.H. it was noted that the Veteran did work with aircraft and in work areas where munitions, including nuclear ordnance, were stored. There is a possibility that the Veteran was exposed to tumorigenic doses of radiation. The Veteran indicated that his coworkers and superiors gave him the impression that the munitions stored were not free of radiation as the "official word" would maintain. Upon review of the evidence, the Board finds that the evidence of record is in favor of service connection for residuals of thyroid cancer. As an initial matter, the Board finds that the Veteran has a current diagnosis of residuals of thyroid cancer. The Board also finds that it is likely that the Veteran was exposed to at least some radiation during his military service as his service personnel records show that he was issued a radiation detection badge from November 1965 to April 1966. Furthermore, there is also medical evidence that such disability is related to the Veteran's military service. As above, the February 2014, June 2017, May 2018, and May 2019 private medical opinions relate the Veteran's thyroid cancer to even minimal in-service radiation exposure. While the September 2013 opinion from S.G.R. suggests that only excessive radiation can cause thyroid cancer, the subsequent medical opinions, including the May 2018 addendum opinion from Dr. S.G.R. relate even small amounts of radiation exposure to thyroid cancer. There is no contrary medical opinion of record. The Board finds these medical opinions highly probative of the inherently medical question before it. Accordingly, the Board finds that the Veteran's thyroid cancer is related to his military service and service connection for thyroid cancer is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.