Citation Nr: 22012893 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 11-18 840 DATE: March 7, 2022 ORDER Service connection for hypothyroidism, to include as due to ionizing radiation exposure, is denied. REMANDED Service connection for prostate cancer, to include as due to ionizing radiation exposure. FINDING OF FACT The Veteran's hypothyroidism did not have its onset during service and is not otherwise related, including related to his exposure to ionizing radiation in service. CONCLUSION OF LAW The criteria for service connection for hypothyroidism, to include as due to ionizing radiation exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 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 November 1951 to November 1954. The case is on appeal from January 2010 and May 2012 rating decisions. In February 2014, the Veteran testified at a Board hearing. In a November 2018 decision, the Board denied the claim of service connection for hypothyroidism. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated the decision and remanded the claim to the Board. The claims most recently came before the Board in August 2021 and were remanded for further development. At that time, the Board also denied service connection for bilateral cataracts. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for hypothyroidism, to include as due to ionizing radiation exposure Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA regulations provide for service connection for radiation exposed veterans on three different legal bases. The first basis is a presumptive basis for diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309(d). The second is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease as provided in 38 C.F.R. § 3.311. A veteran is also entitled to service connection if he can establish that a disability warrants service connection on a direct or presumptive basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Facts The Veteran contends that his exposure to ionizing radiation during service led to his hypothyroidism. The Veteran's service treatment records (STRs) are silent for complaints and treatment related to hypothyroidism. However, his exposure to ionizing radiation during service is confirmed. The Veteran's military records confirm his participation in Operation "Tumbler-Snapper," conducted at the Nevada Test Site in 1952, which exposed him to ionizing radiation. The Board notes the Under Secretary for Benefits developed an "expedited" process to avoid lengthy delays in obtaining a specific medical opinion. In December 2006, the Chief of Public Health and Environmental Hazards outlined dose tables which indicate that for Nevada Test Site cases, such as the case here, the total reported dose exposure is 17.5 rem. The "adjusted" total prostate dose for the Nevada Test Site is listed at 19 rem. The largest dose the Veteran was estimated to be exposed to according to the Defense Threat Reduction Agency (DTRA) report is 16 rem. In accordance with 38 C.F.R. § 3.311(a), a dose assessment was obtained from the Department of Defense, specifically the DTRA in December 2011. According to this dose assessment, the Veteran was estimated to be exposed to 16 rem external gamma dose; .5 rem external neutron does; zero rem internal committed dose to the prostate (alpha); 1 rem internal committed dose to the prostate (beta plus gamma); and 28 rem total dose to the lens of the eyes (beta plus gamma). Following the Veteran's December 2008 claim of service connection for hypothyroidism, he was afforded a February 2014 Board hearing in which he asserted his hypothyroidism is related to his in-service exposure to ionizing radiation. In March 2014, the Board remanded the claim for further development, to include an advisory opinion from the Under Secretary for Benefits pursuant to § 3.311. Pursuant to this request, a July 2018 memorandum opinion was received from a health physicist, Dr. McClung and was also noted as reviewed by a separate physician, Dr. Hastings. Dr. McClung concluded it is not likely that the Veteran's hypothyroidism was caused by exposure to ionizing radiation during service. He noted the Veteran's in-service radiation exposure during Operation "Tumbler-Snapper" and that the Veteran was diagnosed with hypothyroidism in 2009, 57 years after the claimed exposure to radiation. The examiner indicated hypothyroidism is not a disease listed at 38 C.F.R. § 3.309 and the Veteran's service does not include participation in a "radiation-risk activity." The July 2018 examiner noted medical literature supports that hypothyroidism in persons under 30 years of age at the time of radiation exposure did show a dose-dependent excess; however, this appeared within 20 years of exposure and shows a relative risk of only 1.24 at a dose of 1 Gy (100 rem). The examiner stated the Veteran's dose of 17.5 rem to the thyroid is less than the 1/5 of this threshold and his disease was diagnosed 57 years post-exposure. The claim was denied by the Board in November 2018 and in a June 2020 Memorandum Decision, the Court vacated the decision. The Court found the July 2018 medical opinion was inadequate, as it contained "multiple inaccurate statements." With regard to the Veteran's hypothyroidism, the July 2018 examiner indicated that the Veteran was diagnosed with hypothyroidism in 2009. However, the Court noted that the record shows hypothyroidism was diagnosed as early as 1998. The claim came before the Board in February 2021 and was remanded for further development, including a VA medical opinion from a physician to determine the etiology of the hypothyroidism. The Veteran was afforded a March 2021 VA examination report from a non-physician which provided a negative nexus opinion. He stated after review of the relevant evidence, the disorder was less likely than not incurred in or caused by service and a nexus has not been established. A May 2021 VA opinion also provided a negative nexus opinion, including that the relevant medical literature and radiation exposure studies suggest the disorder was not related to service. The claim was remanded by the Board in August 2021, including for an opinion from a VA physician to determine the etiology of the Veteran's hypothyroidism. Thereafter, a September 2021 opinion from a VA physician was provided which determined the Veteran's hypothyroidism is not related to his in-service radiation exposure. He indicated there is no evidence of hypothyroidism during service and the Veteran was not diagnosed with hypothyroidism following service until 1997 or 1998. He reported it is almost a medical certainty that the Veteran would have had medical issues related to hypothyroidism had the nexus of the disorder been in service and gone untreated for greater than 40 years. The examiner opined the letter from 2011 estimating the Veteran's radiation exposure in service places the Veteran's exposure level well within the acceptable guidelines and not at risk for the formation of hypothyroidism. He noted hypothyroidism is not known to be caused by radiation exposure, especially in the doses the Veteran endured while in service. He stated thyroid cancer is a known risk of exposure to radiation; however, the doses must be higher than those experienced by the Veteran in service. Thus, he concluded it is less likely than not that the Veteran's hypothyroidism is due to service, including ionizing radiation exposure during service. Analysis After careful review of all the medical and lay evidence, the Board finds service connection for hypothyroidism is not warranted. Although the Veteran was exposed to ionizing radiation during service, the most persuasive medical evidence of record supports that the disorder is not etiologically related to service, to include ionizing radiation exposure. The Board accords the greatest probative weight to the September 2021 VA opinion. Following the most recent Board remand, the VA physician provided an opinion which concluded the Veteran's hypothyroidism is not related to service. The examiner adequately addressed the evidence of record, to include such related to the Veteran's radiation exposure and dose assessment. The examiner's opinion is consistent with the evidence of record and addresses whether the Veteran's hypothyroidism is etiologically related to his in-service radiation exposure. Moreover, the opinion contains clear conclusions with well-reasoned explanations in support. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes there are no medical opinions of record which support a causal link between the Veteran's in-service radiation exposure and his diagnosed hypothyroidism. The Board acknowledges the Veteran's lay evidence, including the February 2014 hearing testimony. However, the present claim involves a complex medical issue requiring medical training. While the Veteran as a lay person is competent to report symptoms he experienced during service, he lacks the requisite expertise to render a medical opinion as to the etiology of hypothyroidism. This is a complex medical question which falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's opinion as to the etiology of his hypothyroidism is afforded less probative weight than the September 2021 VA physician's opinion. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for hypothyroidism is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board is remanding another claim for additional development, remand is not necessary for the issue decided herein, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND Service connection for prostate cancer, to include as due to ionizing radiation exposure. The claim for service connection for prostate cancer was most recently remanded by the Board in August 2021 for a VA medical opinion from a physician to determine the etiology of the disorder. Thereafter, an August 2021 VA opinion was received with a positive nexus, although limited rationale in support. Additionally, a January 2022 VA opinion was submitted with a negative nexus. Both the August 2021 and January 2022 VA opinions were not provided by physicians, as specifically directed by the Board in the August 2021 remand, and unlike the hypothyroidism claim addressed above in which a physician's opinion was provided. Therefore, the Board is unable to find that the August 2021 and January 2022 VA medical opinions substantially complied with the August 2021 remand. See Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board finds an additional VA opinion is warranted from a physician to address the etiology of the Veteran's prostate cancer. The matters are REMANDED for the following action: Obtain a VA medical opinion from a Physician to determine the etiology of the Veteran's prostate cancer. The VA Physician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's prostate cancer had its onset during, or is otherwise related to, service, to include his exposure to ionizing radiation. The examiner should review and discuss the relevant evidence of record, including the dose estimates from the December 2006 Chief of Public Health and Environmental Hazards, the December 2011 dose assessment from the DTRA, as well as the medical evidence in favor of and against the claim. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.