Citation Nr: 18132331
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-12 346
DATE:	September 6, 2018

ORDER
Entitlement to service connection for a thyroid disorder, to include thyroid nodules and hypothyroidism, to include as due to ionizing radiation is denied.
Entitlement to service connection for diabetes mellitus, to include as secondary to a thyroid disorder, however diagnosed is denied.
Entitlement to service connection for atrial fibrillation, to include as secondary to a thyroid disorder, however diagnosed is denied.
Entitlement to service connection for an arterial condition, to include as secondary to a thyroid disorder, however diagnosed is denied.
Entitlement to service connection for hypertension, to include as secondary to a thyroid disorder, however diagnosed is denied.
Entitlement to service connection for residuals of a lung tumor to include a schwannoma, to include as due to ionizing radiation is denied.
Entitlement to service connection for osteoporosis, to include as secondary to ionizing radiation is denied.
Entitlement to service connection for hypogonadism, to include as secondary to ionizing radiation is denied.
Entitlement to service connection for erectile dysfunction, to include as secondary to hypogonadism is denied.

FINDINGS OF FACT 
1. The Veteran was exposed to ionizing radiation as a participant in Operation Hardtack I.
2. A thyroid disorder, diabetes mellitus, atrial fibrillation, arterial disorder, hypertension, residuals of a lung tumor to include a schwannoma, osteoporosis, hypogonadism and erectile dysfunction were first clinically demonstrated decades after his separation from active duty, and the preponderance of the evidence of record is against showing that these disabilities are etiologically related to his active service, against showing that they are etiologically related to a service connected disorder, and against showing that they are related to inservice exposure to ionizing radiation.

CONLCUSIONS OF LAW
1. A thyroid disorder, to include thyroid nodules was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311.
2. Residuals of a lung tumor, to include a schwannoma, were not incurred in or aggravated by active service, nor may they be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311.
3. Osteoporosis was not incurred in or aggravated by active service nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311.
4. Hypogonadism was not incurred in or aggravated by active service nor may it be presumed to have been so incurred.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311.
5. Hypertension was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred, and it was not caused or aggravated by a service connected disorder. 38 U.S.C. §§ 1137, 1154(a), 5107(b); 38 U.S.C. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.311.
6.  Diabetes mellitus was not incurred in or aggravated by active service nor may it be presumed to have been so incurred, and it was not caused or aggravated by a service connected disorder.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.311.
7. Atrial fibrillation, was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred, and it was not caused or aggravated by a service connected disorder.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.311.
8. An arterial condition was not incurred in or aggravated by active service nor may it be presumed to have been so incurred, and it was not caused or aggravated by a service connected disorder. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.311.
9. Erectile dysfunction was not incurred in or aggravated by active service, and it was not caused or aggravated by a service connected disorder.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.303, 3.310, 3.311.



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1957 to January 1959.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision entered by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
The Veteran testified before the undersigned during a February 2016 Travel Board hearing.  A transcript is of record.
The appeal was remanded to VA for further development in August 2016.  The Board finds that VA has complied with the Remand directives. 

Service connection 
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131.  Generally, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
Certain chronic diseases, such as diabetes mellitus, and cardiovascular-renal disease to include hypertension, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from active duty even though there is no evidence of such disease during the period of active duty service.  This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a).
Under 38 C.F.R. § 3.303 (b), service connection may be assigned for chronic disorders showing a continuity of symptomatology provided that the disorder is listed under 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As diabetes mellitus, and cardiovascular-renal disease, to include hypertension, are chronic diseases 38 C.F.R. § 3.309, the theory of continuity of symptomatology is applicable with respect to the claims of entitlement to service connection for those disabilities.
Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303 (d).
A review of the service treatment records does not reveal any complaints, findings or diagnosis pertaining to a thyroid disorder, diabetes mellitus, atrial fibrillation, an arterial disorder, hypertension, residuals of a lung tumor to include a schwannoma, osteoporosis, hypogonadism and/or erectile dysfunction.  At the appellant’s January 1958 separation examination his endocrine, genitourinary, heart, and lungs were clinically evaluated as normal. 
Significantly, the Veteran does not argue that these disorders are directly due to service.  Rather, he argues that a thyroid disorder, a schwannoma, osteoporosis, and hypogonadism are due to in-service radiation exposure; and that diabetes mellitus, atrial fibrillation, an arterial condition and hypertension each to include as secondary to a thyroid disorder. The specific requirements for adjudicating claims for service connection based on exposure to ionizing radiation are found at 38 C.F.R. § 3.311.
In this regard, for all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period, and it is contended the disease is a result of ionizing radiation exposure during service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311 (a)(1).  For purposes of 38 C.F.R. § 3.311, a “radiogenic disease” is defined as a disease that may be induced by ionizing radiation and are listed at 38 C.F.R. § 3.311 (b)(2)(i)-(xxiv), (b)(5)(iv).  Non-malignant thyroid nodular disease and lung cancer are radiogenic diseases for purposes of 38 C.F.R. § 3.311.  Diabetes mellitus, atrial fibrillation, arterial disorders, hypertension, residuals of a schwannoma, osteoporosis, hypogonadism and erectile dysfunction are not.
For claims based on radiation exposure due to atmospheric nuclear weapons test participation a request will be made for dose data from the appropriate office of the Department of Defense. The claim will then be referred to the 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 Undersecretary 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 Undersecretary of Health.  38 C.F.R. § 3.311(b), (c)(1).  The Under Secretary for Benefits (or another appropriate VA official) must inform VA in writing either that sound scientific and medical evidence supported the conclusion that it was at least as likely as not a veteran's disease resulted from exposure to radiation in service, or that there was no reasonable possibility that the disease resulted from exposure to radiation in service.  38 C.F.R. § 3.311(c); see also M21-1.IV.ii.1.C.  
The appellant was exposed to ionizing radiation inservice as a participant in Operation Hardtack I.  The record shows that VA undertook has undertaken all necessary development set out in 38 C.F.R. § 3.311 to secure a dose estimate of the appellant’s inservice exposure to radiation.  VA also secured a medical opinion addressing the probability that the Veteran’s diagnosed thyroid disorder, residuals of a schwannoma, osteoporosis, and hypogonadism are the result of in-service radiation exposure.  While a VA examination was not conducted the Board finds that an examination was not warranted given that there is no question that the Veteran has the above-cited disabilities and evidence involving dosage estimates and medical opinion as to causality developed under 38 C.F.R. § 3.311 adequately address the salient issues in this case.
The Veteran claims entitlement to service connection for a thyroid disorder, a schwannoma, osteoporosis, and hypogonadism each to include as a result of exposure to ionizing radiation.  The Veteran also seeks service connection for a diabetes mellitus, atrial fibrillation, arterial condition and hypertension each to include as secondary to a thyroid disorder.  Finally, the Veteran seeks entitlement to service connection for erectile dysfunction as secondary to hypogonadism.
The Board will collectively analyze the claims for service connection for disabilities claimed as due to ionizing radiation exposure prior to its analysis of the claims for secondary service connection to a thyroid disorder and finally service connection for erectile dysfunction.
Entitlement to service connection for a thyroid disorder, schwannoma, osteoporosis and hypogonadism to include as due to ionizing radiation
The Veteran contends that his thyroid disorder, schwannoma, osteoporosis, and hypogonadism are the direct result of his exposure to ionizing radiation while serving aboard the U.S.S. Boxer during Operation Hardtack I. According to the Defense Threat Reduction Agency a dose reconstruction was prepared on the basis of the worst-case assumptions for the Veteran’s ship positioning with respect to the multiple test detonations and the magnitude of each detonation.  
Based on this reconstruction the doses which the Veteran could have received were not more than:  external gamma 18 rem; external neutron 0.5 rem, internal committed dose for osteoporosis (alpha) 8 rem; internal committed dose for osteoporosis (beta + gamma) was 0.3 rem; internal committed dose for hypogonadism (alpha) 4.5 rem; internal committed dose for hypogonadism (beta and gamma) 2 rem; internal committed dose for thyroid disorder (alpha) 0.1 rem; internal committed for thyroid disorder (beta and gamma) 7 rem; and internal committed dose for residuals of a schwannoma(alpha, beta and gamma) 0.1 rem.
This report was to the Post Deployment Heath Service.  That office noted the dose estimates; the dates and circumstances of the Veteran’s radiation exposure; the nature of his diagnosed thyroid disorder, schwannoma, osteoporosis and hypogonadism, the Veteran's age at exposure (23 years); the time lapse between exposure and diseases (i.e., thyroid disorder, diagnosed 57 years after initial exposure; schwannoma diagnosed 47 years after initial exposure; osteoporosis diagnosed 51 years after initial exposure; and hypogonadism diagnosed over 43 years after initial exposure); any pertinent family history and the lack of a his history of known carcinogen exposure.  
In a May 2018 report the Post Deployment Health Service, based on the evidence of record concluded that it was unlikely that the Veteran’s schwannoma, thyroid nodules, diabetes mellitus, atrial fibrillation, hypogonadism, infertility, osteoporosis and hypertension were caused by inservice exposure to ionizing radiation.  The Post Deployment Health Service noted that a schwannoma was not a cancer that qualified for presumptive service connection.  The Post Deployment Health Service also noted that the United Nations Scientific Community on the Effects of Atomic Radiation released a report stating that mortality from diseases other than cancer for radiation doses less than 100 rem to 200 rem was not seen, adding that 100 rem to 200 rem was one order of magnitude above the dose level calculated by Defense Threat Reduction Agency for the Veteran.  In view of the above, in May 2018 the Post Deployment Health Service opined that it was not likely that the Veteran’s schwannoma, thyroid disorder, diabetes mellitus, atrial fibrillation, hypogonadism, infertility, and/or hypertension were caused by inservice exposure to ionizing radiation.
The Post Deployment Health Service’s May 2018 report was forwarded to the Director of the VA’s Compensation Service.  In a June 2018 advisory opinion, the Director of VA Compensation Service, opined that based on a review of the evidence, and relevant facts to include the Post Deployment Health Service opinion, there was no reasonable possibility that the Veteran’s schwannoma, thyroid nodule, hypogonadism, and osteoporosis were the result of exposure to ionizing radiation during service.  
The Board acknowledges that the Veteran has challenged the dose estimates calculated by the Defense Threat Reduction Agency.  He specifically alleges that office’s dose estimate of 18 rem for his external gamma exposure was excessively high, so to cast doubt on the accuracy of their calculations and the two resulting advisory opinions.  Significantly, the appellant has not offered any contrary competent evidence which offers a contrary dose, or medical opinion evidence which links his thyroid condition, schwannoma, osteoporosis and hypogonadism to his military service to include any inservice radiation exposure.  Additionally, the appellant has not presented any evidence that he has the qualifications to present a dose estimate.
The Board also acknowledges the Veteran’s steadfast belief that his thyroid condition, schwannoma, osteoporosis and hypogonadism are due to radiation exposure from his participation in nuclear testing in the Pacific.  Notwithstanding his experience with and service to the National Association of Atomic Veterans, the appellant is not shown to have the expertise or training necessary to render competent opinions addressing the existence of any link between his inservice radiation exposure and the onset of the claimed disabilities decades later.  Moreover, even if a computation error had been committed resulting in the report of an artificially elevated gamma dose, correction of such an error would result in a lower probability of the claimed disabilities being associated with radiation exposure and as such, the claimed defect in reporting would be harmless error.
The Board finds that a calculation of radiation exposure without an objective means of calculation or a correlation between radiation exposure and the above-cited disabilities is not something to which the Veteran is competent to provide a probative opinion.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  Thus, the Board finds that the evidence of record preponderates against entitlement to the benefits sought on appeal.  Again, it is significant that the Veteran does not present any scientific or medical evidence indicating that the above-cited disabilities are the direct result of his radiation exposure.
Thus, in the absence of probative evidence showing an association between the Veteran’s thyroid nodules; schwannoma, osteoporosis and hypogonadism and his period of military service, to include his exposure to ionizing radiation, the preponderance of the evidence is against entitlement to service connection for these disabilities.  As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply and the benefits sought on appeal are denied. 38 U.S.C. §§1131, 5107.

Diabetes mellitus 
The Veteran contends that his diabetes mellitus was caused by his military service and his thyroid condition.  In support of his position, the Veteran reported the onset of weight gain one to two years after separation, which he associated with the onset of his diabetes.  
As held above, service connection is not in effect for a thyroid disorder.  Hence, secondary service connection is not in order.  Moreover, the available service medical records do not reveal any complaints, findings or diagnoses of diabetes inservice.  Additionally, there is no competent evidence showing that diabetes was compensably disabling within a year of the claimant’s separation from active duty.  Indeed, diabetes appears to have been diagnosed decades postservice.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim for service connection for diabetes.) Finally, there is no competent medical opinion evidence linking diabetes to the appellant’s active duty service.  As such, the preponderance of the evidence is against the claim, and the benefit sought on appeal must be denied.
As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107.
Atrial fibrillation, arterial disorder, hypertension to include as secondary to a thyroid disorder, however diagnosed
The Veteran contends that atrial fibrillation, an arterial disorder and hypertension are related to his service to include his thyroid condition.  As held above service connection is not in effect for a thyroid disorder.  Hence, that theory of entitlement to secondary service connection is meritless.  
Turning to the question of entitlement to service connection under other theories the appellant’s service treatment records, to include his discharge physical examination report, reflect no complaints, findings or diagnosis of a heart arrhythmia, an arterial disorder, or hypertension in service.  Moreover, there is no competent medical opinion evidence showing that a cardiovascular disease, to include hypertension, was compensably disabling within a year of the Veteran’s separation from active duty.  Finally, there is no competent evidence otherwise linking any of these disorders to service.   
While the appellant may sincerely believe that these disorders are related to service, as a lay person he is not competent to offer an opinion which requires specialized medical knowledge and training. 
Accordingly, as the preponderance of the evidence is against these claims, service connection for atrial fibrillation, an arterial disorder, and hypertension, to include as secondary to a thyroid disorder, is denied.
Erectile dysfunction, to include as secondary to hypogonadism
The Veteran contends that his erectile dysfunction is related to his service and caused by his hypogonadism.  As held above, service connection is not in effect for hypogonadism.  Hence, entitlement to secondary service connection is denied.
Further, the service treatment records show no complaints, treatment or diagnosis of erectile dysfunction.  While erectile dysfunction was diagnosed decades postservice there is no competent medical opinion evidence linking this disorder to service.  While the appellant may sincerely believe that this disorder is related to service, as a lay person he is not competent to offer an opinion which requires specialized medical knowledge and training. Accordingly, as the preponderance of 
 
the evidence is against entitlement to erectile dysfunction, service connection for that disorder, is denied.
 
DEREK R. BROWN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Allen M. Kerpan, Associate Counsel 

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