Citation Nr: 22045686 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 18-02 039 DATE: August 11, 2022 ORDER Entitlement to service connection for an esophageal disorder, claimed as Barrett's esophagus is denied. FINDING OF FACT The Veteran's Barrett's esophagus is not related to active-duty service. CONCLUSION OF LAW The criteria for service connection for esophageal disorder, claimed as Barrett's esophagus, as due to radiation exposure have not been met. 38U.S.C. §§1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to March 1980. In May 2022, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the Regional Office (RO). A transcript of the hearing is of record. A VA examination was not requested to provide direct service etiological opinion for the Veteran's Barrett's esophagus, and a lack of such request was not inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Board finds that given the absence of in-service evidence of chronic manifestations of this disorder, and no evidence of this disorder until many years after service, a VA opinion on a direct basis is not warranted for this disorder. 38 C.F.R. § 4.2; cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr, 21 Vet. App. 303 (2007). As such, there is no prejudice to the Veteran in proceeding with the adjudication of the claim and the available records and medical evidence are indeed sufficient to make an adequate determination as to this claim. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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, service connection may be presumptively established for specific diseases that are manifest in radiation-exposed veterans. 38 U.S.C. § 1112 (c); 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. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309 (d)(3)(ii)(A). The term "onsite participation" means presence at the test site, or performance of military duties in connection with ships, aircraft, or other equipment used in direct support of the nuclear test, during the official operational period of an atmospheric nuclear test. 38 C.F.R. § 3.309 (d)(3)(iv)(A). 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), a 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. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation, which Barrett's esophagus is not specifically listed as one such disease, and the Veteran has not been diagnosed with esophageal cancer throughout the period on appeal. 38 C.F.R. § 3.311 (b)(2)(xxiii). However, it is only eligible as such if it becomes manifest five years or more after exposure. 38 C.F.R. § 3.311 (b)(5)(iv). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311 (a)(2). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran's exposure to radiation. These records normally include, but may not be limited to, the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained; service medical records; and other records which may contain information pertaining to the Veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311 (a)(2)(iii). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and, (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311 (c). When such a claim is forwarded for review, the VA Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311 (e) and may request an advisory medical opinion from the VA Under Secretary of Health. 38 C.F.R. § 3.311 (b), (c)(1). After referral, the Under Secretary for Benefits must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from such exposure. 38 C.F.R. § 3.311 (c)(1). 1. Entitlement to service connection for an esophageal disorder, claimed as Barrett's esophagus The Veteran asserts that his Barrett's esophagus is related to active-duty service. Specifically, he asserted that his disorder was due to exposure to radiation he incurred during active service most specifically at Eniwetok Atoll in 1979. However, after a review of the evidence of record, service connection is not warranted. In this case, the evidence of record does reflect that the Veteran was present at Eniwetok Atoll in 1979Presence at Eniwetok is listed as a "radiation risk activity" in 38 C.F.R. § 3.309(d)(3), but only for certain specific periods, the last of which ended in 1959. Therefore, the Veteran cannot be categorized as a "radiation exposed veteran" for purposes of this section. Next, the Veteran's service treatment records include a DD Form-1141, which documents that he was exposed to a total of 7 millirem during his service. However, Barrett's esophagus is not a radiogenic disease. Therefore, there is no basis for referral to the VA Under Secretary for Benefits under 38 C.F.R. § 3.311. Therefore, service connection is also not warranted on this basis. Finally, in considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection for the Veteran's disorder is not warranted including based upon direct service connection. The Veteran has provided proof other than lay statements that his Barrett's esophagus could be due to radiation exposure. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). As an initial matter, the Board concludes that the Veteran has a current diagnosis of Barrett's esophagus, but the weight of the evidence is against finding that the disorder began during active service and/or is otherwise related to an in-service injury, event, or disease, to include as secondary to radiation exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), (d), 3.304, 3.307, 3.309. In this case, the Veteran's service treatment records are silent for any symptoms or a diagnosis of Barrett's esophagus. Specifically, the Veteran's February 1980 separation examination does not reflect any symptoms or a diagnosis of an esophageal disorder (to include Barrett's esophagus). Further, the Veteran does not assert that his Barrett's esophagus has existed since service as he testified that he experienced heartburn symptoms two years after discharge. Moreover, he was not diagnosed with Barrett's esophagus until more than 20 years after his active-duty service. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). Again, the Veteran does not assert that he has had symptoms or a diagnosis of Barrett's esophagus since active duty service, or within one year of service separation. Next, although the Veteran is not competent to diagnosis and provide etiological opinions related to the disorder on appeal, service connection may nonetheless be established if a relationship is otherwise demonstrated by competent evidence, including medical evidence and opinions. Nevertheless, the competent evidence fails to establish a relationship between active duty and the Veteran's current symptoms or Barrett's esophagus diagnosis. Further, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence or literature, to establish a relationship between the Barrett's esophagus and active service. The Board notes that the Veteran was not afforded a VA medical opinion in conjunction with his direct service connection claim for Barrett's esophagus. However, as the probative evidence does not establish an in-service event or injury, the Board finds that a VA examination is not required to adjudicate the claim for direct service connection. Moreover, the Veteran's own unsubstantiated statements are not sufficient to trigger the need for a VA medical opinion in this case. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Additionally, the Veteran did not provide any medical opinions stating that his disorder was related to active-duty service including radiation exposure. Next, in arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his disorder to active service including radiation exposure. While the Veteran believes that his disorder is related to service, he is not competent to provide testimony regarding the diagnosis and etiology of these disorders as he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In light of the above discussion, the Board concludes that the weight of the evidence is against the service connection claim, and there is no doubt to be otherwise resolved. As such, the appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel