Citation Nr: 21029416 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-14 226 DATE: May 13, 2021 ORDER Entitlement to service connection for thyroid cancer, to include as due to ionizing radiation, is denied. FINDING OF FACT The Veteran's thyroid cancer did not have its onset during active service, or for several decades thereafter, and is not otherwise proximately due to his active service, to include radiation exposure therein. CONCLUSION OF LAW The criteria for entitlement to service connection for thyroid cancer, to include as due to radiation exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned Veterans Law Judge during a February 2018 hearing; a transcript of the hearing is of record. This matter was previously before the Board in July 2018 and January 2021, wherein the Board remanded for additional development. The matter has returned to the Board for adjudication. 1. Entitlement to service connection for thyroid cancer, to include as due to ionizing radiation, The Veteran contends that his thyroid cancer is due to his active duty service. Specifically, that he was exposed to ionizing radiation when he was assigned to clean the inside and outside of aircraft operating as part of Operation Dominic during his time when stationed at Larson Air Force Base (AFB) and this exposure caused his thyroid cancer. 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). First, 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, if a claimant does not qualify as a radiation-exposed veteran under 38 C.F.R. § 3.309 (d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309 (d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. The Veteran's thyroid diagnosis is delineated at 38 C.F.R. § 3.311 (b)(2)(xvii) as a radiogenic disease. February 2012 VA treatment records demonstrate that it manifested more than 5 years after his discharge in September 1965. 38 C.F.R. §§ 3.311 (b)(1)(iii), 3.311(b)(5). As he has asserted that he qualifies under occupational exposure (MOS) or "other activities," the special provisions of 38 C.F.R. § 3.311 apply. 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). In July 2018, the Board remanded the case for referral to the Under Secretary for Heath for a radiation dose estimate and to the Under Secretary for Benefits for an advisory opinion as to whether the Veteran's thyroid cancer is related to his exposure to ionizing radiation, specifically to include through exposure to ionizing radiation from cleaning and maintaining aircraft contaminated as part of Operation Dominic I at Larson AFB, consistent with the requirements of 38 C.F.R. § 3.311. Consequently, a dose estimate and advisory medical opinion were requested pursuant to 38 C.F.R. § 3.311. The Director, Post-9/11 Era Environmental Health Program stated that although they are fairly certain the Veteran was not exposed, they will assign a radiation dose of 1.0 rem (total effective dose equivalent) to the Veteran, which was calculated as 0.5 rem per year x 2 calendar years of claimed assigned at Larson AFB (1962 and 1963). The Director explained that the assigned dose gives benefit of the doubt to the Veteran versus the Air Force's lack of dose monitoring records. Ultimately, the Director of the Post-9/11 Era Environmental Health Program found that since the Veteran's estimated lifetime total radiation dose (1.0 rem) did not exceed 100 mSv (10 rem) above natural background, it is our opinion that it is unlikely that thyroid cancer was caused by exposure to ionizing radiation during military service. In October 2020, an advisory opinion from the Under Secretary for Benefits was issued indicating that, based on the dose estimates provided, it was unlikely the Veteran's thyroid cancer could be attributed to radiation exposure during his military service. The Under Secretary for Benefits determined in the October 2020 advisory opinion that based on the October 2020 Director of the Post-9/11 Era Environmental Health Program advisory medical opinion, it is her opinion that it is unlikely that the Veteran's thyroid cancer was caused by exposure to ionizing radiation during military service. In this regard, the Under Secretary for Benefits did not use the correct legal standard as outlined in the regulations when forming her opinion. The regulations state that the Under Secretary for Benefits must be convinced that sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran's disease resulted from exposure to radiation in service or that there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service. The Under Secretary for Benefits advisory opinion to the RO merely reiterated the Director of the Post-9/11 Era Environmental Health Program's advisory opinion and stated that is unlikely that the Veteran's thyroid cancer was caused by exposure to ionizing radiation during military service. In a January 2021 addendum opinion, the Under Secretary for Benefits clarified the October 2020 advisory opinion, maintaining the body of information contained within the October 2020 opinion, but found that "sound scientific evidence does not support a relationship" between the Veteran's service and his thyroid disorder. By way of rationale, the Under Secretary for Benefits summarized two leading experts in the field of radiation risk: The Health Physics Society (HPS) and the National Academies. It was noted that HPA finds the "average annual natural background radiation for any individual is 0.3 rem" and determined in "a position statement PS010-1 with the most up to date version being PS010-4 Radiation Risk in Perspective" that "below levels of 10 rem (100mSv) the observed radiation effects in people are not statistically different from zero." The Under Secretary for Benefits further detailed findings of The National Academies of Sciences, Engineering, and Medicine (NASEM) found in Potential Radiation Exposure in Military Operations: Protecting the Soldier Before, During, and After ... "one can summarize the available data on risk of malignancy induction in a number of ways. For example, for a population of 100 25-year-old males instantaneously exposed to 100 mSv (10 rem), there will be an excess of approximately one fatal cancer. Thus, the excess risk is approximately 1 percent (1 in 100 chances) in addition to the natural rate of fatal cancer in the general population of about 20 percent (20 in 100 chances). If this were chronic exposure, the risk would be half of the above." This evidence is highly probative and is against the Veteran's claim for this benefit on the basis of radiation exposure. The scientific theory and studies that form the basis of the opinion is discussed in the context of this Veteran's claim. There is no opposing opinion here to address. Third, notwithstanding the above, when a veteran is found not to be entitled to service connection under 38 C.F.R. § 3.311, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether his disability is otherwise the result of active service. Direct service connection can be established by showing that the disability being claimed was incurred during or aggravated by service, including presumptive service connection for chronic disease. Combee, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). For presumptive service connection for chronic disease, the disease must have manifested to a compensable degree within one year of the date of separation from service. 38 C.F.R. § 3.309(a); 38 C.F.R. § 3.307(a)(3). As reflected in his treatment records, the Veteran's thyroid cancer did not manifest within a year of his separation from service, therefore precluding him from the above-noted chronic disease presumption. Id. The record does reflect, however, that, according to the second category, he (1) was exposed to ionizing radiation during his service, (2) he subsequently developed a radiogenic disease (namely, thyroid cancer) and (3) the cancer manifested five years or more after exposure (here, it manifested in 2012, therefore approximately forty-seven years after exposure). In a March 2021 examination, the examiner found it was less likely than not incurred in or caused by an in-service injury, event or illness. By way of rationale, the examiner opined that the "thyroid gland is particularly radiation sensitive, with radiation exposure of the thyroid during childhood as a clear environmental risk factor for malignant thyroid tumors." He also found that the conceded radiation exposure in adulthood while serving is considered a "very low level of radiation exposure and not associated with later development of malignancy, including thyroid malignancy." And thus, "the Veteran's thyroid cancer is unlikely to have developed due to the minimal radiation exposure that the Veteran experienced in adulthood, while on active duty service." He further found that the May 2012 VA endocrinology progress note associating the Veteran's thyroid disorder to radiation did not specify any level of radiation exposure and did not consider the level of radiation exposure occurring in adulthood, thus decreasing or nullifying any relationship to a thyroid disorder. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). As the preponderance of the evidence is against finding that the Veteran was a "radiation-exposed Veteran" or that his thyroid cancer was present during service or otherwise related to service, the claim for service connection for thyroid cancer, to include as due to radiation exposure, must be denied. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.