Citation Nr: 21042485 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-54 451 DATE: July 13, 2021 ORDER Entitlement to service connection for a heart disability due to exposure to non-ionizing radiation is denied. Entitlement to service connection for bilateral cataracts due to exposure to non-ionizing radiation is denied. Entitlement to service connection for hypothyroidism due to exposure to non-ionizing radiation is denied. Entitlement to service connection for hypertension due to exposure to non-ionizing radiation is denied. Entitlement to service connection for sleep apnea due to exposure to non-ionizing radiation is denied. Entitlement to service connection for peripheral vascular disease (PVD) of the lower extremities due to exposure to non-ionizing radiation is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's heart disability, bilateral cataracts, hypothyroidism, hypertension, sleep apnea, or PVD of the lower extremities began during his service or are otherwise related or attributable to his service, including especially to exposure to non-ionizing radiation. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a heart disability, bilateral cataracts, hypothyroidism, hypertension, sleep apnea, or PVD of the lower extremities. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 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 from March 1954 to March 1957. This appeal to the Board of Veterans' Appeals (Board) is from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his December 2018 VA Form 9, Substantive Appeal to the Board, the Veteran requested a hearing before the Board. In subsequent written correspondence received in October 2019, however, the Veteran withdrew his hearing request. 38 C.F.R. § 20.704(e) (2018). This case was previously before the Board in December 2019 and April 2021, and both times the claims were remanded back to the RO for further development and consideration including to obtain all outstanding treatment records relevant to these claims and to then have the Veteran examined for medical nexus opinions concerning the origins of these claimed disabilities especially in terms of whether related or attributable to his military service and particularly to his alleged exposure to non-ionizing radiation. Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). It also warrants mentioning that the National Personnel Records Center (NPRC) indicated in a July 2017 letter that the Veteran's military records were in an area destroyed by a 1973 fire in that facility. In this circumstance VA has a heightened obligation to explain its findings and conclusions and carefully consider applying the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claims. That is to say, missing records concerning the Veteran's claims, including service treatment records (STRs), do not lower the threshold for allowing the claims; there is no reverse presumption for granting these claims. The legal standard for proving these claims is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claims, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claims for service connection by suggesting a correlation between his claimed conditions and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare, 1 Vet. App. at 367). Service Connection 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 an disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is claiming entitlement to service connection for each of these disabilities on the premise they are the result of exposure to non-ionizing radiation during his military service. While VA previously has conceded his exposure to non-ionizing radiation, there is a distinct difference between exposure to non-ionizing radiation and meeting the criteria to be considered a "radiation exposed veteran"; the Veteran does not meet these specific criteria. See 38 C.F.R. § 3.309(d). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II that resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii). Here, though, the Veteran's service did not involve any of those circumstances; instead, he served during the Korean Conflict and after it ended. Thus, as he is not considered a "radiation exposed veteran," presumptive service connection for diseases specific to radiation exposed veterans is not available to him. See id. This means that the Veteran's claims must be based, instead, on a direct service connection theory of entitlement or, for the disabilities that are considered "chronic", per se, on the notion they initially manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of his discharge from service so by March 1958 to in turn warrant presuming they were incurred during his service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). He does not allege, and the evidence does not suggest, any other presumptive basis of entitlement including on the theory he was exposed to herbicides (the dioxin in Agent Orange) during his service especially, again, when considering when he was in the military, i.e., during the Korean Conflict and immediately after it concluded, not instead immediately prior to or during the Vietnam War era. Thus, 38 C.F.R. §§ 3.307(a) and 3.309(e) do not apply. It nonetheless is permissible to show these claimed disabilities are directly attributable to his service including especially to his conceded exposure to non-ionizing radiation. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). See also 38 C.F.R. § 3.303(d). In June 2017, the Veteran submitted a written letter to VA in which he stated that he believes each of his claimed disabilities was caused by "exposure to radar RF and EMF energies." He submitted documentation showing that he completed a Radar Repair course during his service. He stated that he believes he was exposed to RF and EMF radiation during his service and, being worried about this exposure, sought to change his military occupational specialty (MOS) to trumpet player. His DD Form 214 shows that his MOS was trumpet player, but VA has conceded that he was exposed to non-ionizing radiation during his service. In the June 2017 letter, he cited to various sources for this information, including an organization called Powerwatch and the World Health Organization (WHO); however, these references discuss exposure to "very high levels of EMF" that could cause "cancer, cardiovascular diseases and DNA Changes." There is no indication he was exposed to excessive, or even high, levels of non-ionizing radiation from participating in the Radar Repair course. Entitlement to service connection for a heart disability, bilateral cataracts, hypothyroidism, hypertension, sleep apnea, and PVD of the lower extremities due to exposure to non-ionizing radiation The Veteran has current diagnoses of a heart disability, bilateral cataracts (with previous retinal detachment), hypothyroidism, hypertension, sleep apnea and PVD of his lower extremities, so there is no disputing he has these claimed disabilities. But, as importantly, there is not the required attribution of these disabilities to his military service including especially even to his conceded exposure to non-ionizing radiation. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Concerning his heart disability, the Veteran first underwent a VA heart examination in January 2020. At this examination, the examiner confirmed diagnoses of a heart block, coronary artery bypass graft, mild pulmonary vascular congestion, and sinus bradycardia. But, as concerning the determinative issue of causation, the examiner opined that it is less likely than not the Veteran's heart disability is due to his military service, although the examiner failed to provide any rationale, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Because that January 2020 VA opinion was found to be inadequate, a VA examiner performed a record review in May 2021 and provided supplemental comment (an addendum opinion). And this examiner also opined that it is less likely than not the Veteran's heart disability is due to his military service, including to exposure to non-ionizing radiation. The rationale was that he was not diagnosed with any heart disability until more than 50 years after his separation from service. And, while it is true that such a long lapse between conclusion of the Veteran's service and initial diagnosis of the condition now being claimed is not sole reason for disassociating the claimed condition from his service, this is probative evidence tending to refute this notion. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran had failed to provide evidence demonstrating continuity of symptomatology, and had failed to account for the lengthy time period for which there is no clinical documentation of his claimed condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (explaining that the Board may consider "evidence of a prolonged period without medical complaint," along with other factors in resolving a claim). Concerning the Veteran's cataracts, the January 2020 VA examiner confirmed that the Veteran has a diagnosis of bilateral cataracts and bilateral macular degeneration, with a noted retinal detachment in 2001 causing his cataracts to onset one year later, so in 2002 or thereabouts. That was long after conclusion of his service. This examiner opined that it is less likely than not the Veteran's bilateral cataracts are due to his military service. The rationale was that he was 67 years old for his first cataract surgery around 2002, and 81 years old at the time of his second cataract surgery in 2016. The examiner explained that medical studies support that the average age of cataract surgery patients is between 70 and 73, and that this Veteran's surgeries at 67 and 81 are "commensurate with age related cataracts." Pursuant to the Board's April 2021 remand, a VA examiner performed a file review later in April 2021 and provided an opinion concerning whether the Veteran's cataracts, instead, are attributable to exposure to non-ionizing radiation. But this examiner concluded that it is less likely than not the Veteran's bilateral cataracts (with history of retinal detachment) are due to his military service, including to his exposure to non-ionizing radiation. The rationale was that he had documented cataract treatment in 2002 and 2016, which is consistent with age- related cataracts. Further, there was no indication presented prior to 2002 that would provide evidence of atypical pathological process of lens (cataract) due to radiation, regardless of his lost STRs. Concerning the Veteran's hypothyroidism, the January 2020 VA examiner confirmed a diagnosis of hypothyroidism. But the January 2020 VA examiner opined that it is less likely than not the Veteran's hypothyroidism is due to his service. The rationale was that there are no STRs to substantiate an onset during his service. The Board found this opinion inadequate in the April 2021 remand, partly owing to the admittedly missing STRs. Resultantly, a VA examiner provided an additional opinion in May 2021. However, this examiner opined that it is less likely than not the Veteran's hypothyroidism onset during his service or is related to his service. The rationale was that, while the exact date of his hypothyroidism onset is unknown, he had previously indicated that he was diagnosed after his separation from service. Concerning the Veteran's hypertension, the January 2020 VA examiner confirmed a diagnosis of benign essential hypertension but did not provide an adequate opinion as to service connection. But the subsequent May 2021 VA examiner did a file review and determined that it is less likely than not the Veteran's hypertension is due to his military service, including to exposure to non-ionizing radiation. The rationale was that, while the exact date of onset of his hypertension is unknown, and he reported that his hypertension onset during his service, it would be very unlikely that hypertension that onset at such a young age would be benign in nature. The examiner explained that, when patients are diagnosed with hypertension in their early 20s, it is often due to an underlying condition causing the hypertension and, therefore, not considered benign essential hypertension, which is the Veteran's current diagnosis. Concerning the Veteran's sleep apnea, the January 2020 VA examiner confirmed a diagnosis of obstructive sleep apnea but did not provide an adequate opinion as to service connection. However, the subsequent May 2021 VA examiner determined that it is less likely than not the Veteran's sleep apnea is related to his service. The rationale was that there was no evidence of an onset of this condition during his service, as he was not first diagnosed with sleep apnea until around 50 years after his separation from service. Further, the examiner explained that obstructive sleep apnea is a physical obstruction in the airway and happens when breathing is either stopped or reduced during sleep because of a narrowing or blockage of the upper airway. The examiner pointed out that medical literature does not support the notion of exposure to non-ionizing radiation causing obstructive sleep apnea as it does not cause any physical obstruction within the airway. Finally, concerning the Veteran's bilateral lower extremity PVD, the January 2020 VA examiner confirmed this diagnosis but again did not provide an adequate opinion as to service connection. However, the May 2021 VA examiner subsequently opined that it is less likely than not the Veteran's PVD is related to his military service including to exposure to non-ionizing radiation, because it was diagnosed more than 50 years after his separation from service. Concerning all claims and addressing the Veteran's June 2017 written statement, the May 2021 examiner pointed out that current medical literature does not support the notion of exposure to non-ionizing radiation causing heart disability, cataracts, hypothyroidism, hypertension, obstructive sleep apnea, or PVD of the lower extremities. The examiner clarified that the Veteran's June 2017 correspondence and cited sources are inconsistent with current medical literature regarding said exposure and the later development of these disabilities. The examiner explained that, while medical literature suggests that ionizing radiation does increase the risk for some heart conditions and some cancers, the same is not true for non-ionizing radiation. The examiner concluded that there is no evidence that non-ionizing radiation exposure is linked to the Veteran's heart disability, bilateral cataracts, hypothyroidism, hypertension, sleep apnea, or bilateral lower extremity PVD. The May 2021 examiner's opinions are probative because they are based on an accurate medical history and provide explanations containing clear conclusions and supporting data based on current and applicable medical literature. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran is not competent to provide a probative nexus opinion regarding the origins of these claimed disabilities especially in terms of whether the result of exposure to non-ionizing radiation during his service. This issue is medically complex, not instead merely simply, therefore beyond the realm of his lay competence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the May 2021 VA examiner's opinions, which are supported by credible and applicable medical literature. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). As such, the Board finds that entitlement to service connection for a heart disability, bilateral cataracts, hypothyroidism, hypertension, sleep apnea, and PVD of the lower extremities due to exposure to non-ionizing radiation is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.