Citation Nr: 0004467 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 95-28 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a bilateral ear disability secondary to radiation exposure during active service. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for a leg disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from September 1950 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Los Angeles, California, regional office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The service medical records are negative for evidence to show that the veteran received nasopharyngeal radiation therapy, or any other exposure to radiation. 2. The veteran does not currently have a disability that medical evidence associates with exposure to radiation. 3. The veteran has submitted a statement from a person who served with him and supports his claim that he sustained a back injury in service, evidence of a current back disability, and competent evidence of a nexus between his current back disability and the injury in active service. 4. The service medical records show that the veteran was treated for a neck injury, which resolved without evidence of residual disability. 5. The initial post service evidence of a neck disability is dated September 1993, and there is no medical evidence that establishes a nexus between the neck injury in service and the current neck disability. 6. The veteran was treated for a contusion of the right leg during service; this injury resolved without evidence of residual disability. 7. The veteran has not submitted medical evidence that shows a current diagnosis of a leg disability. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well grounded claim for entitlement to service connection for a bilateral ear disability secondary to radiation exposure. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran's claim for entitlement to service connection for a back disability is well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The veteran has not submitted evidence of a well grounded claim for entitlement to service connection for a neck disability. 38 U.S.C.A. § 5107 (West 1991). 4. The veteran has not submitted evidence of a well grounded claim for entitlement to service connection for a leg disability. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991). A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. The claim does not need to be conclusive, but only possible in order to be well grounded. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The appellant has the burden of submitting evidence to show that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for there to be a well grounded claim for service connection, there must be evidence of incurrence or aggravation of a disease or injury during service, competent evidence that the veteran currently has the claimed disability, and evidence of a nexus between the inservice disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Competent evidence of the existence of a chronic disease in service or within the applicable presumption period, and present manifestations of the same disease are required to show chronicity. In order to show continuity of symptomatology, there must be medical evidence of a current disability, evidence that the condition was noted in service or the presumption period, evidence of post-service continuity of symptomatology, and medical, or in some circumstances, lay evidence of a nexus between the current disability and the post-service symptomatology. A claim that fails to demonstrate this evidence of either chronicity or continuity may not be well grounded. Savage v. Gober, 10 Vet. App. 488 (1997). When an issue involves either medical etiology or medical diagnosis, competent medical evidence is required to make the claim well grounded. Grottveit v. Brown, 5 Vet. App. 91,92 (1993), see also Rucker v. Brown, 10 Vet. App. 67 (1997). I. Ear Disability due to Radiation Exposure The veteran contends that he has developed a bilateral ear disability as a result of exposure to radiation during active service. He states that he was exposed to aircraft engine noise, and that the engines would sometimes backfire near his ears. He says that this caused tinnitus, and that he underwent radium treatment for his tinnitus at Travis Air Force Base. He apparently believes that the radiation treatment resulted in chronic tinnitus. The veteran also argues that he was given LSD at the same time he underwent radium treatment, and believes that this contributed to his disability. The United States Court of Appeals for Veterans Claims (Court) has stated that service connection for a condition which is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober 120 F.3d 1239 (Fed.Cir.1997). First there are 15 types of cancer which are presumptively service connected. 38 U.S.C.A. § 1112(c) (West 1991 & Supp. 1999). Second, 38 C.F.R. § 3.311(b) (1999) provides a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by "showing 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." Combee v. Brown, 34 F.3d 1039, 1043 (Fed.Cir.1994). See also Hardin v. Brown, 11 Vet. App. 74, 77 (1998). The following radiogenic diseases shall be service-connected if they become manifest in a radiation-exposed veteran, provided the rebuttable presumption provisions of 38 C.F.R. § 3.307 (1999) are also satisfied; 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 gland and cancer of the urinary tract. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d) (1999). In 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 as specified in Sec. 3.307 or Sec. 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. When dose estimates provided are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. 38 C.F.R. § 3.311(a). For purposes of this section the term "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: All forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, and lymphomas other than Hodgkin's disease. 38 C.F.R. § 3.311(b)(2). When it is determined that a veteran was 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, the veteran subsequently developed a radiogenic disease; and such disease first became manifest within the period specified before its adjudication the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with paragraph (c) of this section. 38 C.F.R. § 3.311(b). If after review the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the veteran's disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the RO of jurisdiction in writing. The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in this section. If the Under Secretary for Benefits determines there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the RO office of jurisdiction in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c). The service medical records are completely negative for complaints of tinnitus. March 1954 records show that while the veteran was stationed at Mountain Home Air Force Base, he was treated for a sore throat, headaches, and myalgia. Additional March 1954 records indicate that the veteran was seen for follow up treatment, and that his complaints now included "crackling" of the ears. The examination revealed an upper respiratory infection with pharyngitis. The records do not state that the veteran was afforded radium treatment or any other form of radiation as treatment for his illness. The remainder of the service medical records are also negative for evidence of exposure to radiation. The May 1954 discharge examination was negative for a chronic ear disability. The service medical records are negative for any evidence to show that the veteran was administered LSD. The post service medical records reveal that the veteran was afforded a VA audiological evaluation in September 1994. He reported a history of tinnitus since an airplane engine backfired near him, but did not note a history of exposure to radiation. In October 1994, the veteran received a follow up letter regarding his participation in the VA Ionizing Radiation Exposure Program. The doctor noted the veteran's history of having been exposed to jet engine noise with resulting hearing loss followed by radiation therapy. However, no findings pertinent to the ears were discussed, and the doctor did not state that the veteran had an ear disability as a result of exposure to radiation in service. A statement from G.D., a friend of the veteran, was received in June 1997. He said that he had known the veteran since before he was in the military. The veteran had told him that his ears were treated with some type of radiation. In addition, the veteran had told him that he had been given an injection of LSD. A letter was received from the Department of Defense Radiation Experiments Command Center in September 1997. The letter stated that they were unable to confirm the veteran's participation in a radiation risk activity because they were not in possession of the veteran's personnel records. However, they added that from the description that had been provided, it appeared that the veteran had received nasopharyngeal radium irradiation, which was a procedure widely used in the 1950s to treat otitis media and other hearing impairments. A fact sheet concerning this procedure was enclosed. The fact sheet provided by the Radiation Experiments Command Center states that nasopharyngeal radium therapy was first used in the 1920s by civilian doctors for the treatment of otitis media. In the 1940s, the military began to apply this therapy to aerootitis media. It was also used by both civilian and military doctors between 1940 and the 1960s as treatment for sinusitis, tonsillitis, selected cases of recurrent colds, bronchial asthma, and bronchitis secondary to upper respiratory infection. Of the between 500,000 and 2,500,000 people who were estimated to have received this treatment, most were children with recurrent ear infections. Physicians at the time were convinced that possible adverse reactions to the procedure were few and that it was safe. It was discontinued in the 1960s due to the emergence of pressurized aircraft cabins and alternative forms of treatment. The report states that the only available resource to confirm which military personnel received nasopharyngeal irradiation treatment is individual medical records. Studies of the possible correlation of nasopharyngeal irradiation treatment and subsequent adverse health effects were discussed at an August 1994 congressional hearing, but none of them demonstrated a strong correlation between this treatment, and cancer or other adverse effects in people who had received the treatment as adults. The results of the Presidential Advisory Committee on Human Radiation Experiments' investigation on the use of nasopharyngeal irradiation were released in 1995, and concluded that the treatment did not significantly affect the recipients quality or length of life. The military use of this treatment was well within the accepted medical practices of the day, and there were no perceivable increased health risks directly attributable to nasopharyngeal irradiation. The Board finds that the veteran has not submitted a well grounded claim for entitlement to service connection for a bilateral ear disability secondary to radiation exposure during active service. The service medical records are negative for complaints of tinnitus. The only reference to complaints concerning the ears was in conjunction with treatment for an upper respiratory infection in March 1954. These records do not show that the veteran received any radiation therapy. At this juncture, the Board notes that the veteran has argued that if radiation treatment is not demonstrated in his service medical records, then those records must be missing. However, the Board notes that there is no indication that there are any service medical records which have not been obtained. The veteran has contended that his radiation therapy was conducted at Travis Air Force base. Records from Travis Air Force base are among the service medical records in the claims folder, and include the records showing treatment for the upper respiratory infection in March 1954. As noted, these records do not show that the veteran received radiation treatment. Finally, the Board notes that tinnitus is not among those radiogenic diseases listed in 38 C.F.R. § 3.311(b). In addition, the veteran has not submitted any medical opinion that indicates radiation therapy can cause tinnitus. The Board recognizes the veteran's sincere belief that he had developed tinnitus as a result of radiation treatment, but the veteran is not a physician, and he is not qualified to express a medical opinion as to such a relationship. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Therefore, as there is no evidence of radiation treatment or any other exposure to radiation during active service, and no evidence of a current disability that can be related to radiation, the veteran's claim is not well grounded. Caluza v. Brown, 7 Vet. App. 498 (1995); Rucker v. Brown, 10 Vet. App. 67 (1997). In reaching this decision, the Board notes that the Court has held that there is some duty to assist a veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103(a), depending on the particular facts in each case. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board is of the opinion that this duty has been met for the veteran's claim for service connection for an ear disability secondary to radiation exposure. The personnel records are not contained in the claims folder. However, the veteran does not contend that he was exposed to radiation as a result of atmospheric testing or presence at a bomb site. He states that he received radiation treatment as a course of medical treatment. The information received from the Department of the Defense in September 1997 states that records of nasopharyngeal radiation treatment would be contained in the service medical records, and the veteran's records are contained in the claims folder. As the veteran has not submitted evidence to show that he currently has a radiogenic disease, it is not necessary to obtain a dose estimate, or an opinion from the Under Secretary for Benefits. Therefore, the duty to assist the veteran has been met. II. Back, Neck, and Leg Disabilities The veteran contends that he has developed a back disability, a neck disability, and a leg disability due to injuries he sustained during service. He states that he fell off the wing of an aircraft and injured his low back. The veteran also says that he developed disabilities to his neck and leg as a result of injuries sustained in an automobile accident during service. The service medical records show that the veteran was involved in an automobile accident in February 1953. He had pain in the right thigh and on the top of his head. On examination, there was a moderate, severe contusion of the antero-medial aspect of the right thigh. March 1953 records indicate that the veteran's leg had improved, but that he was complaining of a stiff neck. An X-ray study of the thoracic cage was negative. The veteran was treated with whirlpool and diathermy. Additional March 1953 records show marked improvement due to whirlpool to the right thigh, and infra red to the neck. The remainder of the records are negative for evidence of a neck disability, a back disability, and a leg disability. The May 1954 separation examination showed that the veteran's neck, spine, and lower extremities were normal. June 1987 private medical records show that the veteran was treated for complaints that included a squirming, popping feeling in his legs, and weak, dull back pain. His medical history noted that he had experienced low back pain and left leg numbness in 1980, and had undergone surgery at the L5 to S1 disc at a VA hospital. The impressions included acute and chronic low back pain with bilateral L5 radiculitis and L5 greater than L4 radiculopathy and weakness. It was difficult to clinically tell if there was a superimposed spinal stenosis on his previous old injury. Additional private medical records from 1987 and 1988 contain evidence consistent with chronic moderate to severe injury of the right L4 to L5 roots. Private medical records from September 1993 show that the veteran underwent a magnetic resonance imaging scan of the cervical spine. The findings included central disc protrusion at C5 to C6, with a mild degree of central canal stenosis. A letter from the veteran's private doctor dated October 1994 states that she has treated the veteran since March 1992. It was noted that the veteran reported that his back problems had begun when he fell from an airplane wing during service. In 1980, the veteran had undergone spinal anesthesia for a hemorrhoidectomy, after which he developed severe back pain. He had subsequently undergone a laminectomy at L5. The veteran continued to have significant weakness of both lower extremities. In a November 1994 letter, E.F. states that he had served on active duty with the veteran. They were both ground crewmen for B29s. E.F. says that while the plane was on Kwajalein island, he returned from lunch break and was told that the veteran had fallen off the wing and landed on the concrete runway. E.F. did not see the fall occur. An August 1995 letter from G.Y., D.C., the veteran's chiropractor, states that he has treated the veteran for pain of the low back for over 25 years. An August 1995 letter from M.T., D.C., another private chiropractor, states that he had first met the veteran in 1957 when he had initially sought treatment for a low back disability at his father's clinic. He had treated the veteran from 1961 to 1993 for the back disability, and reported that the veteran had been undergoing treatment since 1955, which was before he initially sought care at his father's clinic. In an August 1995 letter, H.M., M.D. states that he treated the veteran for a back disability from 1960 until 1987. The veteran had told him at the initial examination that he had injured his back in a fall during active service. It was the opinion of the doctor that the back disability that the veteran experienced later in life was connected to the earlier injury. A second letter from H.M. containing the same information was received in June 1997. In the June 1997 letter from G.D., he said that the veteran had told him about falling off the wing of an airplane during service. He had also been told about injuries to the veteran's neck and leg in an automobile accident in service. Back The Board finds that the veteran has submitted evidence of a well grounded claim for entitlement to service connection for a back disability. The veteran has stated that he injured his back in a fall from an airplane wing during service. He has submitted a statement from E.F. that supports his contention. These statements are presumed to be credible for the purpose of determining whether or not a claim is well grounded. The post service medical records include the August 1995 letter from M.T., D.C., which notes that the veteran had been receiving treatment for a back disability since 1955, and continues to undergo treatment for his back disability. This statement supports the veteran's claim of continuity of symptomatology. Finally, the August 1995 letter from H.M., M.D., states that he began to treat the veteran for a back disability in 1960, and it was his opinion that the disability was related to the injury in service. Therefore, as the veteran has submitted evidence of an injury in service, evidence to show that he currently has a back disability, and evidence of a nexus between his current back disability and active service, his claim is well grounded. Caluza v. Brown, 7 Vet. App. 498 (1995); Savage v. Gober, 10 Vet. App. 488 (1997). The issue of entitlement to service connection for a back disability will be addressed further in the remand section at the end of this decision. Neck The service medical records show that the veteran was treated for complaints of neck pain as a result of an automobile accident in February 1953. However, there is no evidence of treatment subsequent to March 1953, and the May 1954 separation examination showed that the veteran had a normal neck. There was no diagnosis of a chronic neck disability in service, and the evidence does not show that the neck injury resulted in a chronic disability. Furthermore, the first post service evidence of a neck disability is the September 1993 magnetic resonance imaging scan which showed disc protrusion at C5 to C6. There is no medical opinion that relates this disability to the injury in active service. Therefore, as the evidence does not show that the veteran sustained a chronic neck disability during service, as there is no evidence of continuity of symptomatology between discharge from service in 1954 and the September 1993 medical records, and as there is no medical evidence of a nexus between the current disability and active service, the veteran's claim is not well grounded. Caluza v. Brown, 7 Vet. App. 498 (1995); Savage v. Gober, 10 Vet. App. 488 (1997). Leg Disability Initially, the Board notes that the veteran does not identify which leg he is seeking to have service connected. However, some of the letters submitted by the veteran contend that he injured his leg during the automobile accident during service. The service medical records show that the veteran was treated for a contusion of the right leg following his automobile accident in February 1953. March 1953 records indicate that his injury was improving, and the remainder of the service medical records, including the May 1954 separation examination, are negative for evidence of a leg disability. The current medical evidence shows bilateral L5 radiculitis and L5 greater than L4 radiculopathy and weakness, and additional records show complaints of bilateral leg weakness and pain. However, the veteran has not submitted any evidence to show a relationship between his current complaints and the injury to the right leg he sustained in active service, and he has not submitted evidence of a diagnosis of a current right leg disability. Therefore, his claim for entitlement to service connection for a leg disability is not well grounded. Caluza v. Brown, 7 Vet. App. 498 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). ORDER Entitlement to service connection for a bilateral ear disability secondary to radiation exposure during active service is denied. The veteran's claim for entitlement to service connection for a back disability is well grounded; to this extent, his claim is granted. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for a leg disability is denied. REMAND The veteran's claim for entitlement to service connection for a back disability is well grounded. The record shows that the veteran has not been afforded a VA examination of his back in conjunction with his current claim. The Board finds that a current examination to determine the nature and etiology of his back disability would be useful in reaching a decision in this case. VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107. This includes affording the veteran adequate medical examinations. Therefore, in order to assist the veteran in the development of his claim, the Board finds that this case should be remanded to the RO for the following action: 1. After obtaining any necessary authorization, the RO should attempt to obtain the veteran's complete treatment folders from G.Y.,D.C., M.T.,D.C., and H.M., M.D. and any other source identified by the veteran as a treating physician during the years following his service discharge. Any records obtained should be associated with the claims folder. 2. The veteran should then be afforded a VA orthopedic examination to determine the nature and etiology of his low back disability. All indicated tests and studies should be conducted. The claims folder should be made available to the examiner for review before the examination. In the event that back disability is identified, and following review of the medical history contained in the claims folder has been completed, the examiner should express an opinion for the following question: Is it more likely, as likely, or less likely than not that the veteran's current back disability is related to his period of active service? An explanation of the reasons for this opinion and the evidence relied upon to reach the opinion should be included. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. THOMAS J. DANNAHER Member, Board of Veterans' Appeals