Citation Nr: 19104690 Decision Date: 01/18/19 Archive Date: 01/18/19 DOCKET NO. 09-12 174 DATE: January 18, 2019 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for thyroid cancer, to include as secondary to exposure to ionizing radiation or hazardous chemicals is denied. FINDINGS OF FACT 1. The evidence does not demonstrate that the Veteran’s hypertension had its onset in service or within the first year following service separation. 2. The evidence does not demonstrate that the Veteran’s thyroid cancer is the result of his military service, to include as secondary to exposure to ionizing radiation or hazardous chemicals therein. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for thyroid cancer, to include as secondary to exposure to ionizing radiation or hazardous chemicals have not been met. 38 U.S.C. §§ 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from June 1978 to July 1999, to include during the Gulf War. The Board sought expert medical opinions with respect to each of the issues on appeal. The Veteran was provided with an opportunity to respond to the findings of these opinions and those responses have been considered in the adjudication of the claims below. Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. As the Veteran served for 90 days or more, hypertension will be presumptively service-connected if it manifested to a degree of 10 percent or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a), 3.384. Entitlement to service connection for hypertension The Veteran seeks service connection for hypertension, which he asserts had its onset in service but was not properly diagnosed until some time after service separation. At the time of his separation from service in June 1999, the Veteran answered Yes to the question of having experienced either high or low blood pressure. The retirement physical showed a blood pressure reading of 138/86 and the provider noted he had no current disability. Medical records dated in August 2000 showed elevated blood pressure readings of 140/100, with a history of one reading of 152/90 from January 1997 shown in a March 2000 report. A VA examination in December 2010 noted that the Veteran was officially diagnosed with hypertension in 2009 after several different episodes of elevated blood pressure. The examiner noted that an EKG done in service had not shown any changes indicative of hypertension. The examiner offered the opinion that the Veteran’s hypertension was not the result of his military service, but was related to the normal signs of aging and his weight. In his Notice of Disagreement in May 2011, the Veteran asserted that he had experienced high blood pressure on multiple visits in the Navy. The failure of medical providers to properly diagnose hypertension was not his fault. At the March 2013 Board hearing, the Veteran testified that in service he had episodes of dizziness and coughing. He stated that he had high blood pressure during his last few years in the Navy. He told the medical provider of this when he had his retirement physical, but was told that his readings were not high enough to worry about. The Board sought an expert medical opinion in September 2017 with respect to the Veteran’s hypertension. The opinion, received in August 2015, stated that the Veteran’s hypertension did not have its onset in service. The expert acknowledged that the Veteran had episodes of elevated blood pressure, usually related to other health problems and ongoing pain complaints. The expert stated that the pain and acute health problems experienced at the time of those readings were sufficient to produce elevated blood pressure and were separated in time by multiple normal blood pressure readings. An EKG conducted in 1993 did not show any evidence of heart remodeling consistent with hypertension; while such evidence alone is not required for a diagnosis of hypertension, it would be consistent with findings of hypertension. The expert further stated that there was no evidence in the medical record to support a conclusion that the Veteran’s hypertension was manifested in the first year after separation from service, to include prior to August 2000. This opinion was provided following a review of the record and was accompanied by a clear rationale. For these reasons it is highly probative. Moreover, it is not refuted by any other competent evidence of record. After reviewing all of the evidence of record, with specific attention to the documents discussed above, the Board finds that service connection for hypertension is not warranted. The Veteran had episodes of elevated blood pressure in service associated with other health conditions, but did not have a diagnosis of hypertension per se during his military service or within one year of separation from service. The only medical opinions of record which address the Veteran’s hypertension are against the claim of service connection. Specifically, the expert medical opinion obtained in August 2015 addressed the Veteran’s history and the medical evidence of record and found no basis for service connection. The preponderance of the evidence being against the claim of service connection, the benefit of the doubt standard of proof does not apply. 38 U.S.C. § 5107(b). The claim is therefore denied. Entitlement to service connection for thyroid cancer, to include as secondary to exposure to ionizing radiation or hazardous chemicals The Veteran seeks service connection for his thyroid cancer and the residuals thereof, which he has asserted to be the result of exposure in service to ionizing radiation and/or hazardous chemicals. With respect to the issue of exposure to ionizing radiation, the Veteran has asserted the following sources of such exposure: working on a ship deck near the radar station, working as an engineman on seven different vessels, working at a nuclear submarine base in Georgia for two years, and guarding military missiles. He also underwent several X-rays for medical issues and a bone scan. Service connection for a disability that is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d, 120 F.3d 1239 (Fed. Cir. 1997). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed Veteran. A “radiation-exposed Veteran” is defined 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. 38 U.S.C. § 1112 (c)(3); 38 C.F.R. § 3.309 (d)(3). A “radiation-risk activity” is defined as onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which 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; or the Veteran’s presence at certain specified additional locations. Id. The term “occupation of Hiroshima or Nagasaki, Japan, by United States forces” means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials. 38 C.F.R. § 3.309 (d)(3)(vi). The second avenue for achieving service connection is found under 38 C.F.R. § 3.311 (b)(2). This section provides that certain listed “radiogenic” diseases found five years or more after service in an ionizing-radiation-exposed Veteran may be service connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. 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, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, 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). The medical adviser 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 in-service radiation exposure. 38 C.F.R. § 3.311 (c)(1). Pursuant to 38 C.F.R. § 3.311 (b)(2), radiogenic diseases include: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin’s disease; (xxiii) Prostate cancer; and (xxiv) any other cancer. A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received. 38 C.F.R. § 3.311 (b)(4). Finally, service connection may be granted under 38 C.F.R. § 3.303 (d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran has also asserted that he was exposed to hazardous chemicals in service as a result of his work with refrigerants and coolants and cleaning agents. He noted that he maintained an engineering plant aboard ship as part of his duties. He provided a list of the chemicals he had been exposed to, namely, Trichlorethylene, AFFF Foam, CO2, dry cleaning solvent, asbestos, nitrogen, mercury, hydraulic fluids, blue lead primer, red lead primer, antifreeze, boiler chemicals, CFC 113, CFC 11, trichlorofluoromethane, dichlorodifluoromethane, chlorodifluoromethane, grease and oils, boat oil, JP5, #2 diesel, Halon 1211, Halon 1301, and PKP. A dosage estimate for radiation provided by the Naval Dosimetry Unit in November 2012 stated that the Veteran had no occupational exposure to ionizing radiation in service. At the March 2013 Board hearing, the Veteran testified that he had experienced health symptoms in service including dizziness, insomnia, and persistent coughing. He noted that he was exposed all of the time to all kinds of chemicals used in the engineering plants, and that he stood watch on deck next to radar equipment. At the time of his thyroid cancer diagnosis, the doctor asked him if he had been exposed to radiation and he told him only in the Navy around radars. In June 2015, the Director of Compensation Services noted that the Navy had shown no specific incident of exposure to radiation in service. As such, the Veteran’s radiation exposure was simply natural background exposure. As such, the Director assigned an occupational dose of 0.0 rem. An individual dose of 5 rem in one year or a lifetime dose of 10 rem is likely to pose health risks. However, below 5 to 10 rem, risks of health effects were so small as to be non-existent. Based on this data, the Director offered the opinion that the Veteran’s thyroid cancer was unlikely to be the result of any exposure to ionizing radiation in service. A January 2016 medical opinion stated that the Veteran’s symptoms in service of dizziness, impaired balance, persistent cough, and difficulty sleeping were not evidence that the Veteran’s thyroid cancer had its onset in service. The medical expert stated that thyroid cancer was not usually preceded by any symptoms, therefore the symptoms in service were not early symptoms of thyroid cancer. On this basis, the expert stated that there was no medical basis to link the Veteran’s symptoms in service to his thyroid cancer diagnosed after service separation. In May 2017 the Board obtained an expert medical opinion with respect to the Veteran’s chemical exposure in service. (See VACOLS3, Attachments, OR 60 Day Letter, May 15, 2017.) The expert stated that the current medical knowledge regarding the causes of thyroid cancer showed that most cases were either genetic or due to exposure to ionizing radiation. There is no established causative link between chemical exposure and thyroid cancer. While there have been suggestions of such a link, no scientific studies have been performed to ascertain the validity of these theories. Thus, any link between chemical exposure in service and the Veteran’s subsequent diagnosis of thyroid cancer would be speculative at best. After considering all of the evidence of record, with specific attention to the documents discussed above, the Board finds that there is no causative link between the Veteran’s military service and his thyroid cancer. Specifically, the evidence with respect to the Veteran’s exposure to ionizing radiation establishes that his dosage in service was of a background nature and was below the levels associated with adverse health consequences. As a result, the requirements for service connection based on exposure to ionizing radiation have not been met. Such opinion was offered after a review of the record and was accompanied by a clear rationale. As such, it is deemed highly probative. Moreover, no other competent evidence refutes such opinion. In addition, the medical evidence of record is against a link between the Veteran’s exposure to hazardous chemicals in service and his subsequent thyroid cancer. The medical opinion of January 2016 noted that the Veteran’s specific symptoms in service were not related to his thyroid cancer, because thyroid cancer was not associated with early symptoms. Further, the expert medical opinion obtained in May 2017 noted that there was no medical or scientific evidence at present linking chemical exposure to thyroid cancer. Thus, the preponderance of the evidence is against the Veteran’s claim of service connection and the benefit of the doubt standard does not apply. 38 U.S.C. § 5107(b). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel