Citation Nr: 1749102	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  10-25 960	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for bilateral cataracts, to include as due to ionizing radiation and excessive sun exposure.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from August 1943 to April 1946. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in part, denied service connection for bilateral cataracts.

The Veteran provided testimony during a May 2011 videoconference hearing before the undersigned Acting Veterans Law Judge.  A transcript is of record.

In September 2011, the Board remanded this issue for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a) (2) (West 2014).


FINDINGS OF FACT

1.  Evidence from the Defense Threat Reduction Agency (DTRA) establishes that the Veteran is a confirmed participant of the American occupation forces in Japan following World War II in 1945. 

2.  The Veteran therefore participated in a radiation risk activity, as defined by VA regulations, during service and is a radiation-exposed veteran. 

3.  The preponderance of the evidence is against a finding that the Veteran's bilateral cataracts had their onset during active service or are etiologically connected to service, including exposure to ionizing radiation and excessive sun exposure.


CONCLUSION OF LAW

Bilateral cataracts are not the result of active duty service, to include as due to ionizing radiation and excessive sun exposure.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2016); 38 C.F.R. §§ 3.303, 3.307, 3.311 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

The RO provided notice to the Veteran in an April 2008 letter.  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal.  Pertinent medical evidence associated with the claims file consists of service, private, and VA treatment records.  The record also contains the report of a February 2012 VA examination.  Per the September 2011 Board remand instructions, the Veteran also underwent a VA examination in August 2016.  

In a September 2017 correspondence, the Veteran's representative contended that the August 2016 VA examination was inadequate as the VA examiner did not provide an adequate etiology opinion as he did not state what caused the Veteran's bilateral cataracts.  While the Board notes the Veteran's representative's contentions regarding the adequacy of the VA examination, the Veteran gave history regarding the disability at issue during this examination and recounted his relevant symptomatology for the disability.  The report of the August 2016 examination also reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions which were consistent with the remainder of the evidence of record and responsive to the September 2011 Board remand instructions.  Thus, the Board finds that the August 2016 VA examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2016); Barr, 21 Vet. App. at 312.

In light of the above, the Board also finds that the RO substantially complied with the September 2011 remand directives, to the extent possible, and no further action in this regard is warranted.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).

Also of record and considered in connection with the appeal are the various written statements provided by the Veteran as well as the Veteran's hearing testimony.  Accordingly, the Board finds that no additional RO action to further develop the record on the claim is warranted.

Laws and Regulations

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, 71 (1997). 

First, there are diseases that are presumptively service connected in "radiation-exposed veterans" under 38 U.S.C.A. § 1112 (c) and 38 C.F.R. § 3.309 (d).  Certain specified disabilities becoming manifest in a "radiation-exposed veteran" shall be service connected.  See 38 U.S.C.A. § 1112 (c) (1), (2); 38 C.F.R. § 3.309 (d) (1), (2).  The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity."  See 38 U.S.C.A. §1112 (c) (3) (A); 38 C.F.R. § 3.309(d) (3) (i).  "Radiation-risk activity" includes 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.  38 U.S.C.A. §1112 (c) (4) and 38 C.F.R. § 3.309(d) (3).

Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112 (c) and 38 C.F.R. § 3.309 (d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo- alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary.  38 U.S.C.A. § 1112 (c) (2); 38 C.F.R. § 3.309 (d). 

Second, service connection can be established under 38 C.F.R. § 3.303 (d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease.  Specifically, 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), the 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 and shall include the following: (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.  38 C.F.R. § 3.311 (b) (2). 

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) (2016).  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) (2016).

Third, direct service connection can be established under 38 C.F.R. § 3.303 (d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions.  See Combee v. Brown, 34 F.3d 1039, 1043-44   (Fed. Cir. 1994).  Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service.  In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation.

Factual Background and Analysis

The Veteran contends that he incurred bilateral cataracts as a result of ionizing radiation and excessive sun exposure while a participant in the occupation of Japan following World War II.  The record demonstrates diagnoses of combined nuclear sclerotic and posterior subcapsular cataracts.  Moreover, the Veteran testified during the May 2011 Board hearing that his doctors have told him in person that there may be a connection between his exposures and cataracts.

The Veteran's service treatment records are negative for treatment, complaints or diagnoses of bilateral cataracts.

In a March 2008 treatment note, a private physician indicated that the Veteran had a combined nuclear sclerotic and posterior subcapsular cataract to each eye.

In an exposure scenario provided by the Defense Threat Reduction Agency (DTRA), the Veteran reported that he served with the 31st Naval Construction Battalion.  He was noted to have been assigned daily duties from the day of his arrival in Nagasaki, Japan, December 29, 1945, until the day of his departure, March 15, 1946, at the "hottest" spot in the hypocenter or in the downwind fallout area in the vicinity of the Nishiyama Reservoir. 

In March 2008, the Veteran responded that he agreed with the scenario provided except that he corrected a typo regarding the year he left Japan and that he believed that he entered the occupation area in early November 1945 as opposed to December that year. 

In an April 2008 letter, the DTRA observed that the Veteran was a confirmed member of American occupation forces in Japan, in the defined Nagasaki area, following World War II from December 29, 1945, to March 15, 1946.  Based on available military records and the Veteran's recollections and statements, DTRA estimated the Veteran's maximum exposure at external gamma dose: 0.08 rem and upper bound total external gamma dose: 0.23 rem.

The agency noted that the dose reconstruction applied to the Veteran's scenario description originates from the report, Radiation Dose Reconstruction: U.S. Occupation Forces in Hiroshima and Nagasaki, Japan, 1945-1946.  The dose reconstruction is the basis for the worst case assumptions for the Veteran's scenario.  The National Research Council's May 2003 report on the DTRA's dose reconstruction program concurred with the DTRA's assessment that "even the most exposed of the occupation troops in Japan from both internal and external exposure was probably well below 1 rem." 

In a March 2009 letter, the DTRA estimated the Veteran's dose to the lens of the eye was a total dose of 0.187 rem and an upper bound dose (lens of the eye) beta plus gamma was 0.561 rem.  

In July 2009, the case was referred to the Under Secretary for Health for an opinion as to whether it was likely, unlikely or at least as likely as not that the claimed bilateral cataracts were the result of occupational exposure to ionizing radiation during active service. 

In a July 2009 memorandum provided on behalf of the Under Secretary for Health, the Chief Public Health and Environmental Hazards Officer opined that it was unlikely that the Veteran's bilateral combined nuclear sclerotic and posterior subcapsular cataracts could be attributed to exposure to ionizing radiation in service.  In arriving at this opinion, the physician observed that a study in 2007 found that the maximum likelihood dose threshold for Stage I posterior subcapsular cataracts was 35 rad with a 95% confidence interval of 19-66 rad.  The Veteran in this case received a dose of 0.561 rem which was less than 1/35th of the lower threshold dose.  The physician also observed that cataracts can be divided into three major subtypes: nuclear sclerotic (the most common), cortical and posterior subcapsular (PSC).  Cortical and PSC have been associated with environmental stresses including radiation but nuclear scleritic cataracts seem to have a correlation with smoking.  It was noted that the Veteran had a history of smoking and that he quit in 1956.  Based on the foregoing, the opinion was that it was not likely that the Veteran's bilateral combined nuclear sclerotic and posterior subcapsular cataracts can be attributed to ionizing radiation while in the military service.

In a July 2009 memorandum, the Director of Compensation and Pension Service noted the DTRA findings and the opinion on behalf of the Under Secretary of Health, as well as the Veteran's reports of smoking until 1956 and the fact that the DTRA findings indicated that none of the troops participating in the occupation of Japan received a dose from neutron radiation.  It was also reported that the Veteran received a dose of 0.561 rem which was less than 1/35th of the lower threshold dose for stage I posterior subcapsular cataracts.  Based on the foregoing, the opinion was that there is no reasonable possibility that the Veteran's bilateral combined nuclear sclerotic and posterior subcapsular cataracts were the result of exposure to ionizing radiation in service. 

In August 2011, the Veteran submitted an abstract of an article asserting that World War II service members stationed in the Pacific theater were potentially exposed to high-intensity, prolonged sun exposure as well as what appears to be information or statements copied from other unidentified sources asserting a connection between sun exposure and cataracts.  

The Veteran underwent a VA examination in February 2012.  The examiner noted that the Veteran had eye conditions aside from congenital or developmental errors of refraction.  The diagnoses were aged related macular degeneration, retinal detachment of the left eye, cataracts related to age, and ptosis.   

Per the September 2011 Board remand instructions, the Veteran underwent a VA examination in August 2016.  The examiner noted that the Veteran had eye conditions aside from congenital or developmental errors of refraction.  The Veteran had bilateral cataracts, bilateral pseudophakia, bilateral macular degeneration, retinal detachment of the left eye and ptosis of the left eye.  The examiner noted that the Veteran was exposed to ionizing radiation in Japan around 1945 but this was not considered an excess amount.  He had an episode of gazing at the sun after awakening from sleep but there was no evidence of vision damage and his vision at his separation examination was 20/20 in both eyes.  The cataracts were described as nuclear and posterior sub-capsular in nature prior to surgery.  The examiner opined that the Veteran's cataracts were not caused by his in-service episode of sun gazing.  While the Veteran had his cataracts removed at a fairly young age (in his late 50's or early 60's) and they were described as nuclear and posterior sub-capsular in nature, it was less likely than not that they were caused by his exposure to radiation.

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for bilateral cataracts, to include as due to ionizing radiation and excessive sun exposure is not warranted.

As there is a current diagnosis of bilateral cataracts, the first element of service connection is satisfied.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

Regarding service connection on a presumptive basis, the Board notes that the Veteran is clearly a radiation-exposed veteran.  However, bilateral cataracts is not a radiogenic disease listed under 38 C.F.R. § 3.309 (d) (2).  Hence, presumptive service connection cannot be granted on this basis.  Additionally, the Board finds that the most probative evidence demonstrates that the Veteran's bilateral cataracts were not a result of the Veteran's conceded radiation exposure.

Notably, the July 2009 medical opinion from the Chief Public Health and Environmental Hazards Officer considered that a study in 2007 found that the maximum likelihood dose threshold for Stage I posterior subcapsular cataracts was 35 rad with a 95% confidence interval of 19-66 rad and that the Veteran in this case received a dose of 0.561 rem which was less than 1/35th of the lower threshold dose.  Additionally, the physician had access to the Veteran's medical history, to include that he was exposed to ionizing radiation, that he had a history of significant exposure to known carcinogens in cigarettes until 1956, and that he did not have any known post-service radiation exposure.  See 38 C.F.R. § 3.311 (e).  As such, the Board affords this opinion great probative value.  The Director concluded that it was unlikely that the Veteran's bilateral combined nuclear sclerotic and posterior subcapsular cataracts could be attributed to exposure to ionizing radiation in service. 

The Board also notes that the July 2009 memorandum from the Chief Public Health and Environmental Hazards Officer and the Radiation Review opinion provided by the Director of Compensation and Pension Service are the only discussion of any possible relationship between the Veteran's bilateral cataracts and his exposure to ionizing radiation.  As there is no other medical evidence for consideration, the Board finds that there is no competent medical evidence indicating that the Veteran's bilateral cataracts resulted from radiation exposure in service.  38 C.F.R. § 3.311 (f).  Thus, the claim cannot be granted pursuant to 38 C.F.R. § 3.303 (d) with the assistance of the procedural advantages prescribed in 38 C.F.R. 3.311.

The Board has also considered whether the Veteran's bilateral cataracts can be established under 38 C.F.R. § 3.303 (d) by showing that the disease was incurred during or aggravated by service on a direct basis to include as due to in-service sun exposure.

Regarding service connection on a direct basis, the Veteran's service treatment records were negative for any complaints, treatment, or diagnoses of a bilateral cataract disability.

Additionally, the most probative opinions do not show a relationship between any current bilateral cataracts disability and the Veteran's military service, to include sun and/or radiation exposure.  

Notably, the August 2016 VA examiner specifically opined that the Veteran's cataracts were not caused by his in-service episode of sun gazing and that it was less likely than not that they were caused by his exposure to radiation.

The Board finds the most recent VA examination report in September 2016 to be highly probative, as it was based on a thorough review of the Veteran's medical records, evaluation of the Veteran, and cite to relevant medical principles.  The opinion is also consistent with the other evidence of record and is supported by a detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). 

The Board notes again that in August 2011, the Veteran submitted an abstract of an article asserting that World War II service members stationed in the Pacific theater were potentially exposed to high-intensity, prolonged sun exposure as well as what appears to be information or statements copied from other unidentified sources asserting a connection between sun exposure and cataracts.

However, per the September 2011 remand instructions, the August 2016 VA examiner specifically addressed whether the Veteran had an eye disorder that was causally related to in-service sun exposure and/or ionizing radiation.  Significantly, the August 2016 VA examiner noted that while the Veteran had an in-service episode of gazing at the sun after awakening from sleep, there was no evidence of vision damage in service and his vision at his separation examination was 20/20 in both eyes.  

Additionally, while the submitted articles speak in general terms regarding the claimed diseases and their potential relation to sun exposure, the August 2016 VA examiner specifically addressed the Veteran's circumstances in relation to his bilateral cataracts disability and its potential relation to his service to include his reported excessive sun exposure.

In this regard, the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached.  The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).

Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993). 

As a result, the Board finds that the August 2016 opinion of the VA examiner to be the most probative.  

Given that the most probative opinion is against a finding of a relationship between bilateral cataracts and his service, to include as due to ionizing radiation and excessive sun exposure, the Board finds that service connection is not warranted.

To the extent that the Veteran contends that a medical relationship exists between his claimed current disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  In the instant case, however, the Board finds that bilateral cataracts are not a disability subject to lay diagnosis as this diagnosis requires medical training.  More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the etiology of his bilateral cataracts.  Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  

Thus, the Veteran's assertions that there is a relationship between his claimed bilateral cataracts, to include as due to ionizing radiation and excessive sun exposure and his service, are not sufficient in this instance and are outweighed by other probative evidence of record.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral cataracts, to include as due to ionizing radiation and excessive sun exposure, and the claim must be denied.  




ORDER

Entitlement to service connection for bilateral cataracts, to include as due to ionizing radiation and excessive sun exposure is denied.



____________________________________________
N. RIPPEL
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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