Citation Nr: 21013802 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-05 733A DATE: March 10, 2021 ORDER Entitlement to service connection for cysts on liver, to include as due to exposure to ionizing radiation, is denied. FINDING OF FACT There is insufficient evidence of in-service incurrence to include exposure to ionizing radiation with regard to the Veteran’s diagnosed cysts on the liver. CONCLUSION OF LAW The criteria for service connection for cysts on the liver, to include as due to exposure to ionizing radiation, have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran completed active service with the United States Army from April 1962 to April 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In September 2018, in pertinent part, the Board remanded the issue of service connection for cyst on liver, to include development relevant to the Veteran’s claimed exposure to radiation in service. After completion of requested development, the Veteran's claim has been returned to the Board for further appellate proceedings. Service connection for cyst on liver, to include as due to exposure to ionizing radiation The Veteran contends that his diagnosed multiple cysts on his liver are the result of exposure to ionizing radiation that he sustained while working with top secret nuclear reactors during service in Thule, Greenland. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38U.S.C. §§1110, 5107; 38C.F.R. §3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 21 (1997). First, there are diseases that are presumptively service-connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). A “radiation-exposed” veteran is one who participated in a radiation-risk activity. A “radiation-risk activity” includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In this case, the Veteran did not participate in a radiation risk activity, and thus is not a “radiation exposed” veteran for the purposes of presumptive service connection discussed above. Secondly, other “radiogenic” diseases, such as any disease listed under 38 C.F.R. § 3.311(b)(2) may be service connected. Although liver cancer is considered a radiogenic disease that may be induced by ionizing radiation, cysts on the liver are not. § 3.311(b)(2). For claims involving diseases that are not listed in § 3.311(b)(2), such as cysts on the liver, VA will consider the claims under § 3.311 if the veteran submits competent scientific or medical evidence that the claimed condition is a radiogenic disease. However, such evidence was not submitted in this case. In so finding, the Board acknowledges that the Veteran submitted an internet article in March 2016 titled: “US Army’s top secret Arctic city under the ice Camp Century.” The article states that during the Cold War a missile base project was planned at Camp Century, Greenland, that the U.S. stockpiled nuclear weapons in Greenland until 1965, and that the history of nuclear weapons in Greenland first came to light during the “Thulegate” scandal. Although the article included details regarding physical aspects of Camp Century and moving a nuclear reactor to Camp TUTO, near Thule air base, it does not discuss any scientific or medical evidence with regard to whether cysts of the liver constitutes a radiogenic disease. Moreover, although it appears the AOJ requested a dose estimate, as is required by 38 C.F.R. § 3.311(a)(1), in cases where it has been established that a radiogenic disease first became manifest after service, such a dose estimate was not required in this case, as there is no competent scientific or medical evidence that the claimed condition of cysts on liver is a radiogenic disease. Accordingly, there was no need to refer this case to the Under Secretary for Health for preparation of a dose estimate, since there was no evidence or information upon which a dose estimate could be made. 38 C.F.R. § 3.311 (a)(2)(iii). Thus, the third and final remaining avenue of service connection is that direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service. See Combee v. Brown, 34 F.3d 1043–44 (Fed. Cir. 1994). Addressing the first element of service connection, VA radiology and ultrasound findings in April and May 2014 reveal multiple cysts of the Veteran’s liver. However, there is insufficient evidence of in-service incurrence; specifically of exposure to ionizing radiation. The Veteran’s DD Form 214, Report of Transfer or Discharge shows his service occupational specialty as a “general supply specialist.” The form also showed that he had over 11 months foreign and /or sea service in Greenland. Service personnel records show the Veteran had duty assignments including at “HHC USA Polar R&D Center,” Thule Air Force Base, Greenland, from December 1962 to April 1964. Personnel records are silent as to any exposure to radiation incurred as a result of the veteran’s job duties; the United States Army Dosimetry Center researched files for records of the Veteran’s exposure to ionizing radiation and confirmed that they were unable to locate any records of such exposure. In a July 2020 formal finding from the AOJ, it was determined that information required to corroborate the Veteran’s claimed exposure to ionizing radiation had been completed and a negative response for verification of records had been received. It was stated that there was insufficient information to send to another agency for meaningful information so further research was not warranted. Furthermore, while the veteran’s lay statement submitted in May 2014 states that he worked “with nuclear reactors” during his service in Greenland, it provides no additional details of the nature of his job duties; other lay statements and arguments of record also cite only generally to the Veteran’s presence during service at HHC USA Polar R & D Center and the article discussed above indicating that nuclear weapons to include a nuclear reactor were stored there. However, this evidence does not establish that the Veteran was at any point exposed to ionizing radiation during his service in Greenland through the completion of job duties as a general supply specialist or otherwise. Absent probative evidence to the contrary, the Veteran’s assertion that he worked with nuclear reactors during service is not adequate to established that he was exposed to ionizing radiation as a general supply specialist. As noted on the Veteran’s DD 214, this military occupational specialty is related to the civilian occupation of stock clerk supervisor, and there are no other indications in the evidence of record to suggest that his duties in that capacity involved exposure to ionizing radiation. Finally, the Veteran’s service treatment records are absent for any complaints, findings or treatment referable to cysts on the liver. Accordingly, entitlement to service connection for cysts of the liver is denied. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.311. In so finding, the Board notes that because the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Marcella Coyne Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William J. Jefferson III 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.