Citation Nr: 21006676 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-00 331 DATE: February 4, 2021 ORDER Service connection for non-malignant thyroid nodular disease (TND), to include as due to exposure to ionizing radiation, is denied. FINDING OF FACT The Veteran’s TND did not manifest during service or to a compensable degree within an applicable presumptive period, continuity of symptomatology from service is not established, and the disability is not otherwise shown to be etiologically related to an in-service injury, event, or disease, to include in-service exposure to ionizing radiation. CONCLUSION OF LAW The criteria for an award of service connection for TND, to include as due to exposure to ionizing radiation, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 in the United States Army from December 1953 to December 1955. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. This case was previously before the Board in March 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development, to include arranging for the Veteran’s radiation dose estimate to be revisited. The record reflects that such action was taken and the AOJ readjudicated the claim. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service connection for TND, to include as due to exposure to ionizing radiation, is denied. The Veteran seeks to establish service connection for TND. He maintains, in essence, that his disability can be attributed to in-service exposure to ionizing radiation as a result of his participation in Operation TEAPOT, conducted at the Nevada Test Site in 1955. See March 2012 Submission; June 2012 Scenario of Participation and Radiation Exposure; September 2013 VA Form 21-4138. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including endocrinopathies—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for a disorder claimed to be attributable to radiation exposure during service can be established in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), affirmed, 120 F.3d. 1239 (Fed. Cir. 1997). First, there are certain types of cancer which will be presumptively service connected. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b) includes a list of “radiogenic diseases” which will be service connected provided that certain conditions specified in that regulation are met. Specifically, 38 C.F.R. § 3.311(b) provides that if a Veteran has a radiogenic diseases, a dose estimate should be obtained, and the case will be referred to the VA 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. Third, direct service connection can be established for a disorder claimed to be a result of exposure to ionizing radiation by “show[ing] that the disease or malady was incurred during or aggravated by service, a task which includes the difficult burden of tracing causation to a condition or event during service.” See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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 (1990). Here, the Board notes that the Veteran’s service treatment records (STRs) are not available for review. In such cases, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski. 1 Vet. App. 365, 367 (1991). Next, the Board notes that the evidence does not show, and the Veteran does not contend, that TND was shown as chronic in service, that it became manifest to a compensable degree within a year of his discharge from service, or that there has been a continuity of related symptomatology since service. In a December 2015 Form 9 (substantive appeal), the Veteran’s representative explained that the Veteran had not been diagnosed with TND until he underwent an unrelated chest x-ray approximately 50 years after service. Post-service treatment records show that he was diagnosed with TND in 2005. See August 2005 Otolaryngology Consult Note; August 2007 Endocrinology Note; December 2011 Primary Care Note. Furthermore, TND is not a condition recognized in 3.309(d) as presumptively due to exposure to ionizing radiation. TND is listed, however, as a “radiogenic disease” in 38 C.F.R. § 3.311(d). As noted, such conditions are subject to special development procedures. In November 2012, the Defense Threat Reduction Agency (DTRA) provided a radiation dose assessment for the Veteran in accordance with the procedures outlined in 38 C.F.R. § 3.311. In part, the DTRA noted that the Veteran was a confirmed participant in Operation Teapot, conducted at the Nevada Test Site in 1955. Based on the Veteran’s participation, the DTRA concluded that he could not have received more than the following doses: 16 rem of external gamma dose; 0.5 rem of external neutron dose; 0.1 rem of internal committed dose to the thyroid (alpha); and 7 rem of internal committed dose to the thyroid (beta + gamma). Pursuant to 38 C.F.R. § 3.311(b)(1)(iii), the Director of the Compensation Service then referred the claim to the Under Secretary for Health. In a January 2013 memorandum, the Director of the Post 9-11 Era Environmental Health Program (DEHP) opined as follows: While it is well known that thyroid cancer and benign nodular thyroid disease do demonstrate a dose response, the literature is contradictory on whether hypothyroidism may be caused by exposure to radiation from nuclear devices. Wong et al noted that hypothyroidism in persons under 30 years of age at the time of irradiation did show a dose-dependent excess; however, this appeared within 20 years of exposure and showed a relative risk of only 1.24 at a dose of 1 Gy (100 rem). The BEIR VII report indicated that several non-malignant diseases, including thyroid disease, do show a dose response. However, they found it was not possible to rule out a model with a threshold as high as 0.5 Sv (50 rem). The Veteran’s total thyroid dose of 7.1 rem was well below this threshold dose. Atomic bomb survivors under 30 (Veteran was 20) at time of exposure have shown a dose-dependent excess of thyroid disease, defined to include nontoxic nodular goiter, diffuse goiter, thyrotoxicosis, chronic lymphocytic thyroiditis, and hypothyroidism. However, the excess became evident within 20 years after irradiation. This Veteran’s disease was not diagnosed until 50 years after his exposure. [] In view of the above, it is our opinion that it is unlikely that the Veteran’s non-malignant thyroid nodular disease can be attributed to ionizing radiation exposure while in military service.” Based on the foregoing dose estimate, and the DEHP memorandum and other factors outlined at 38 C.F.R. § 3.311(e), the Director of Compensation concluded that there was no reasonable possibility that the Veteran’s TND was the result of his exposure to ionizing radiation during service. In its March 2018 remand, the Board noted that the Veteran’s attorney had advanced argument to the effect that the foregoing radiation dose estimate did not take into account all possible modes of exposure. The attorney noted that although the Veteran was present during testing and was directly exposed to radiation, he remained stationed in the test area for some time following the testing and worked for one year in a portable laundry set up to wash the clothes of participants in the weapons test. The attorney posited that even if all participants and observers were “broomed off” following the weapons testing, residuals could have remained on the clothing, which could have then been retransmitted into the air, where they were inhaled, or into the skin. In support of that theory, he submitted an article issued by the Centers for Disease Control and Prevention (CDCP), pertaining to radioactive fallout from nuclear weapons testing, which described four ways that exposure may occur (direct skin contact from fallout particles in the air; skin contact from fallout particles that fell on the ground; ingestion of plants, milk, or meat that had radioactive fallout on or in it; and breathing in radioactive material in the air). In the March 2018 remand, the Board noted that it appeared clear from the record that the DTRA’s dose estimate for the Veteran included consideration of his handling of possibly contaminated laundry. However, it was not entirely clear whether the duration of his work in the laundry (reportedly one year) was considered. Nor was it entirely clear that all of the possible modes of exposure outlined in the CDCP article were taken into account. As such, the Board remanded the case to have the matter of the Veteran’s radiation dose estimate revisited. In response to the Board’s March 2018 remand, the DEHP issued a second memorandum in July 2020. The DEHP stated, in pertinent part, that the November 2012 DTRA memorandum took all the noted factors into account and that the dose estimate was correct. The DEHP explained that the assigned dose was actually an “upper-bound” dose, which meant that the highest potential dose received by Operation Teapot participants was multiplied by a factor of three. The DEHP indicated that the dose considered all activities associated with Operation Teapot, including the post operational period (the remainder of 1955) and the Veteran’s remaining assignment at Indian Springs. Addressing the factors set out at 38 C.F.R. § 3.111(e), the DEHP again concluded that it was unlikely that the Veteran’s TND could be attributed to ionizing radiation exposure while in the military. Based on the dose estimate, and the new DEHP memorandum and other factors outlined at 38 C.F.R. § 3.311(e), the Director of Compensation confirmed the prior assessment that there was no reasonable possibility that the Veteran’s TND was the result of his exposure to ionizing radiation during service. The reports from the DTRA, the DEHP, and the Director of Compensation all appear to be based on an accurate understanding of the facts, and articulate clear reasons for the conclusions reached. As such, they are highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The record does not contain any contrary opinions from a competent source. The Board has considered the Veteran’s statements in this regard. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of TND or the likelihood that, in his case, his TND can be related to past exposure to ionizing radiation during service. As such, his opinion as to causation lacks probative value. In any event, the Board finds the reports from the DTRA, the DEHP, and the Director of Compensation to be the most probative evidence on the matter. In light of the foregoing, the Board must find that the preponderance of the evidence is against the Veteran’s claim. Simply put, for the reasons stated above, the evidence as it exists is insufficient to link his disability to service. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the greater weight of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Willis, 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.