Citation Nr: 22014674 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-19 289 DATE: March 14, 2022 ORDER Service connection for respiratory disability, to include pulmonary fibrosis, is denied. REMANDED Entitlement to service connection for hair loss, to include alopecia, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The most persuasive evidence does not demonstrate that the Veteran's currently diagnosed pulmonary fibrosis manifested during, or as a result of, active military service. CONCLUSION OF LAW The criteria for service connection for pulmonary fibrosis have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5103, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge in an April 2017 video conference hearing. A transcript of that hearing has been associated with the file. The Board remanded the matter in January 2018 and July 2020 for additional development. The Board finds that the July 2020 remand directives have been substantially complied with and therefore will adjudicate the service connection claim for pulmonary fibrosis. Stegall v. West, 11 Vet. App. 268. For reasons that will be explained below, the claim for alopecia (hair loss) will be remanded. Entitlement to service connection for upper back disability, neck disability, and migraine headaches were originally on appeal as well. However, after the issues were remanded in July 2020, the RO granted service connection for these claims in a December 2021 rating decision, representing a full grant of benefits. Accordingly, these issues are no longer before the Board. Service Connection Establishing service connection generally requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). For a claim based upon exposure to ionizing radiation during service, service connection can be demonstrated by three different methods. First, 38 C.F.R. § 3.309(d)(2) provides a list of cancers that will be presumptively service-connected if manifested in a radiation-exposed veteran. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" that will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established 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." Rucker v. Brown, 10 Vet. App. 67, 71 (1997) (citing Ramey v. Brown, 9 Vet. App. 40, 44 (1996); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)). Under the provisions of 38 C.F.R. § 3.311, a "radiogenic disease" means a disease that may be induced by ionizing radiation and includes prostate cancer. 38 C.F.R. § 3.311(b)(2)(xxiv). Pursuant to 38 C.F.R. § 3.311, when a claimant contends that a radiogenic disease which first became manifest after service, though not to a compensable degree within any other applicable presumptive period, is the result of exposure to ionizing radiation in service, an assessment is made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311(a). Except as otherwise provided, the radiogenic disease must become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(5). If these threshold requirements are met, an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1). 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, 53 (1990). The Veteran served on active duty in the United States Army from January 1976 to January 1979 and from June 1980 to August 1980. The Veteran contends that his pulmonary fibrosis is a result of in-service exposure to radiation. He contends that he was exposed to a variety of environmental hazards to include radiations while serving in the Army at Area 51, Fort Bliss, and White Sands. See August 2009 Statement in Support of Claim. He testified that he was exposed to ionizing radiation in service by working with Nike Hercules Missile Systems in White Sands, New Mexico. He worked with some of the computer control systems on the missiles and saw a symbol of radiation in a lot of places. He worked on Nike missiles from about 1977 to 1980. The record shows a current diagnosis of pulmonary fibrosis. See December 2021 VA Respiratory Benefits Questionnaire (DBQ). As such, the first element of service connection has been met. For the following reasons, the Board concludes that the claim must be denied as there is no probative evidence demonstrating that the Veteran was actually exposed ionizing radiation during active-duty service or that his disability is otherwise attributable to his active service. There is no persuasive evidence that the Veteran participated in a radiation risk activity as defined under 38 C.F.R. § 3.309 (d)(3)(ii). There is also no persuasive evidence showing that the Veteran was exposed to ionizing radiation during his military service. The October 2018 PIES response confirms that all documents responsive to the VA's 1141 request for records of exposure to radiation were uploaded to the claims file. A review of the record does not show any persuasive evidence showing the Veteran participated in a radiation risk activity or that he was actually exposed to radiation while in service. Moreover, his general assertions of seeing radiation stickers at his duty station and marching near atomic bomb testing areas are not corroborated by his military service or personnel records. The Veteran was unable to recall the proximity to radiation and reported working on computer systems. He is competent to report seeing radiation stickers at his duty station; however, he is not competent to determine whether he was actually exposed to ionizing radiation during service. There is nothing in his service department records tending to show any exposure to ionizing radiation during service. The service department records are more persuasive than the Veteran's statements as to in-service radiation exposure. Therefore, the Board finds that Veteran has was not actually exposed to ionizing radiation in service. Accordingly, the pulmonary fibrosis claim is denied under 38 C.F.R. § 3.311, 38 C.F.R. § 3.309. Aside from the Veteran's contentions that his pulmonary fibrosis is related to his claimed radiation exposure, he has not asserted any other reasons he believes how this disability is related to service. Nevertheless, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). As stated above, the Board found that the Veteran was not exposed to radiation at any time during this active duty. Therefore, the question before the Board is whether there is evidence of a nexus between the Veteran's pulmonary fibrosis and any in-service event, illness, or injury. A February 1977 service treatment record shows a diagnosis of bronchitis. Service treatment records dated September 1977 and November 1977 indicate "URI" and "URI vs. early bronchitis." There are three medical opinions of record. A private examiner provided a positive opinion by way of a letter dated September 2010. A VA examiner provided a negative opinion in July 2019. However, for reasons laid out in the January 2018 and July 2020 remands, respectively, these opinions are inadequate. As such, the Board places minimal persuasive value on these opinions. In December 2021 a VA examiner performed an examination in relation to the Veteran's claim. After a review of the file and an in-person exam of the Veteran the examiner opined that the Veteran's pulmonary fibrosis is not related to his military service. The examiner accounted for the in-service treatment records that indicated a respiratory disability of "URI" and bronchitis. The examiner explained that those were self-limited infections that were treated and resolved without evidence of continuation of any sequelae or persistent residuals. He also stated that the earliest documentation pertaining to the respiratory disability is dated 1991, over one decade after separation from active duty. "Therefore, no plausible nexus can be extrapolated to military service without resorting to mere speculation (i.e., regarding the claimant's proposed etiology of exposure to ionizing nuclear radiation.)" The Board finds the December 2021 VA opinion to be of high persuasive value. The examiner indicated review of the file, performed an in-person examination of the Veteran, accounted for the relevant service treatment records, and provided clear and thorough rationale. Although the examiner said that relating the Veteran's pulmonary fibrosis to ionizing radiation in service would be speculative, the examiner specifically found that the Veteran's in-service lung issues were acute and resolved without residuals. There is no competent opinion to the contrary. Given the persuasive medical evidence of record, the Board finds that service connection is not warranted, as the Veteran's pulmonary fibrosis is unrelated to service. The Veteran left service in August 1980. According to the December 2021 VA examination report, the earliest evidence, post-separation showing a diagnosis of pulmonary fibrosis is dated December 1991. The Board was not able to locate that document but as it favors the Veteran the Board will not dispute that 1991 diagnosis. A VA medical record dated 1996 notes a history of pulmonary fibrosis. As such it is reasonable to conclude a diagnosis as early as 1991. However, as the VA examiner noted, the December 1991 diagnosis occurred over a decade post separation. The Veteran is certainly competent to report symptoms consistent with his current disability. However, he is not competent to attribute these symptoms to an event, injury, or disease in service, as he has not demonstrated that he has the requisite medical expertise in determining its etiology and is a layperson in this regard. Additionally, the December 2021 VA medical opinion far outweighs the Veteran's contentions, and is the only competent evidence of record regarding the nexus element. There is no persuasive evidence of record to show a connection between an event, injury, or illness in service and the Veteran's pulmonary fibrosis. As such, the claim must be denied. REASONS FOR REMAND Although there was substantial compliance with the July 2020 remand directives, additional development is required before the service connection claim for alopecia can be adjudicated. In December 2021, a VA examiner provided opinions consistent with the directives, specifically providing an opinion on a direct theory of entitlement. However, upon closer review of the record, a secondary theory of entitlement has been raised by the record. A January 1981 handwritten medical record from Dermatology notes that the Veteran "has developed alopecia that derm says could be 'psychogenic trauma'" and that he was "quite depressed." In January 2018 the Board granted service connection for post-traumatic stress disorder (PTSD). Therefore, a medical opinion on a secondary theory of entitlement is needed. The matter is REMANDED for the following action: 1. Forward the claims file, to include and a copy of this remand to the VA examiner that provided the opinion in December 2021 so that he may provide an addendum opinion. If the December 2021 VA examiner is unavailable, then obtain an addendum opinion from another an appropriate clinician. The need for an in-person examination is left to the discretion of the examiner. The examiner should identify all hair loss disabilities found at any time during the appeal period (from August 2009), to include alopecia. If alopecia areata is not found, the examiner must address the several VA treatment records, including one dated as recently as December 2020, and clearly indicate whether it may have resolved or been misdiagnosed. For each diagnosed hair loss disability, to include alopecia, the examiner should provide an opinion regarding the following: (a.) Whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's hair loss disability, to include alopecia, is proximately due to or caused by his service-connected disabilities, to include his service-connected PTSD. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hair loss disability, to include alopecia, was aggravated (worsened in severity beyond a natural progression) by his service-connected disabilities, to include his service-connected PTSD. The examiner is advised that separate rationale specific to causation and separate rationale specific to aggravation is required. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.