Citation Nr: 0001009 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 97-18 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for myelitis due to exposure to ionizing radiation during service. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active service from August 1956 to September 1960. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, in February 1997 which found that new and material evidence had not been presented to reopen the veteran's claim for service connection for cancer of the epiglottis. During his appeal of that determination, the veteran applied to reopen his claim for service connection for myelitis due to exposure to ionizing radiation during service. By a decision in May 1999, the Board found that new and material evidence had been submitted, reopened the claim, and Remanded the case for the RO to consider the veteran's claim on the basis of all the evidence of record. In September 1997, a hearing was held at the RO before C.W. Symanski, who is a member of the Board rendering the final determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). FINDINGS OF FACT 1. The veteran's claim for service connection for myelitis due to exposure to ionizing radiation in service is not accompanied by cognizable evidence of exposure to ionizing radiation during service. 2. The claim for service connection for myelitis due to exposure to ionizing radiation in service is not plausible. CONCLUSION OF LAW The claim for service connection for myelitis due to exposure to ionizing radiation in service is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background The veteran's service records do not indicate that that he participated in any atmospheric nuclear tests or that he was otherwise exposed to ionizing radiation during service. His DD Form 214 indicates that he had more than 3 years of foreign or sea service in the United States Navy, but does not reflect where that service was. The service medical records are negative for any complaints, clinical findings, or diagnosis indicative of myelitis. In 1983, the veteran was diagnosed with carcinoma of the epiglottis. He underwent surgical resection and, from January 1984 to September 1984, radiation therapy. Private medical records reflect complaints of lower extremity discomfort and weakness beginning in November 1986. In December 1986 he was noted to have progressive inability to walk due to weakness and odd sensations in both legs. In January 1987, the veteran noted spastic paresis of both lower extremities. Records dated in December 1986 and January 1987 showed a probable diagnosis of myelitis of unknown etiology. Also in January 1987 a neurologic consultant diagnosed probable radiation induced myelopathy. It was noted that the veteran had been seen by the radiation therapy service at Duke University, where it was felt that, although his history was consistent with radiation myelitis, such a complication would be exceedingly rare at the doses it was believed his spinal cord had received. A report dated in February 1987 indicated that the veteran was apparently one of the one to two percent who develop myelopathy in spite of adherence to strict limits of total dosage exposure to the cord. Records dated in May 1987 reflect treatment for a urinary tract infection secondary to neurogenic bladder and myelitis. In August 1987 a consulting physician opined that the veteran's neurological condition was not typical of a radiation induced myelitis. The veteran was re-evaluated by Duke University Medical Center in September 1987. At that time his diagnoses included cervical myelopathy, spastic paraparesis, bladder dysfunction with urinary retention. Although no definite etiology for the progression of his cervical myelopathy was ascertained, radiation induced myelitis was considered a probable explanation. In October 1990, the veteran wrote that in service he was stationed at Iwakoni, Japan, from June 1957 to June 1959. He stated that during his tour of duty he was in Hiroshima several times. He reported he was not present during any tests or bombings. Progress notes dated in October 1995 indicate that the veteran was still having difficulty walking due to spinal cord problems. Also of record is a January 1997 statement signed by William L. Harris, M.D., in which the veteran's private physician related that the veteran had developed myelitis of the spinal cord resulting in neurogenic bladder and spastic paresis of the lower extremities after undergoing radiation treatment for cancer of the throat. He noted the veteran reported being in Hiroshima within 15 years after the atomic bomb, and opined that radiation treatment, under normal circumstances should not have caused spinal cord injury leading to myelitis. Dr. Harris related he had told the veteran that it was possible that he had already received radiation, quantity unknown, while in the service. It was Dr. Harris' opinion that the previous exposure to radiation could have led to his poor outcome from the radiation treatment received for carcinoma of the neck. The veteran testified in support of his appeal at a personal hearing before the Board in September 1997. He reported that the symptoms he associated with myelitis, to include weakness in the legs, and incontinence of bladder and bowels, had progressively increased. He testified that while stationed in Japan in the 1950's he visited Hiroshima as many as 15 times and was present in the area which had been ground zero. The veteran said that no one ever warned him that there might be excessive radiation in that area. He also stated that the doctors who had evaluated him had indicated that the likeliness of his developing myelitis from the amount of radiation treatment he received was one in 500. The private physician who had treated the veteran since 1986 wrote in January 1999. He described the veteran's neurological clinical findings and the limitations imposed because of the condition. He did not comment further on the etiology of the disorder. Analysis Service connection connotes many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1131. Such a determination requires a finding of a current disability which is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Each disabling condition shown by a veteran's service records, or for which he seeks service connection, must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (West 1991). Satisfactory lay or other evidence that injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation during active service. 38 C.F.R. § 3.304 (1999). For a showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Additionally, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The following diseases shall be service-connected if they become manifest in a radiation-exposed veteran: (i) Leukemia (other than chronic lymphocytic leukemia), (ii) Cancer of the thyroid, (iii) Cancer of the breast, (iv) Cancer of the pharynx, (v) Cancer of the esophagus, (vi) Cancer of the stomach, (vii) Cancer of the small intestine, (viii) Cancer of the pancreas, (ix) Multiple myeloma, (x) Lymphomas (except Hodgkin's disease), (xi) Cancer of the bile ducts, (xii) Cancer of the gall bladder. (xiii) Primary liver cancer (except if cirrhosis or hepatitis B is indicated), (xiv) Cancer of the salivary gland, or (xv) Cancer of the urinary tract. 38 C.F.R. § 3.309(d). The term radiation-exposed veteran means either a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity. The term radiation-risk activity means: (A) Onsite participation in a test involving the atmospheric detonation of a nuclear device, (B) 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, or (C) Internment as a prisoner of war in Japan (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 occupation forces in Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946. 38 C.F.R. § 3.309(d). 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 § 3.307 or § 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. For purposes of this section the term "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; and (xxii) lymphomas other than Hodgkin's disease. For the purposes of this section: (i) bone cancer must become manifest within 30 years after exposure; (ii) leukemia may become manifest at any time after exposure; (iii) posterior subcapsular cataracts must become manifest 6 months or more after exposure; and (iv) other diseases specified must become manifest 5 years or more after exposure. 38 C.F.R. § 3.311 (1999). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit, however, has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). Initially, the Board notes that myelitis is not a radiogenic disease, as listed at § 3.311. Thus, the procedural provisions of that section are not for application in this case. In addition, myelitis is not a disease subject to presumptive service connection under the provisions of § 3.309(d). Moreover, there is no evidence that the veteran participated in a radiation risk activity, as defined in § 3.309(d), and he does not contend that he did. Therefore, that regulation is not applicable and service connection for myelitis may not be presumed on any basis. The Board's analysis must then turn to the question of direct service connection, pursuant to Combee. The veteran's sole contention in this regard is that he was exposed to radiation during his visits to Hiroshima during service in the 1950's. the only evidence supportive of the veteran's claim is Dr. Harris' January 1997 statement to the effect that it is possible that the veteran received some unknown quantity of radiation in service and that that prior exposure led to the poor outcome that resulted from the radiation therapy for his throat cancer. It is unclear from the record precisely what the basis was for Dr. Harris' opinion that the veteran was possibly exposed to radiation in service. However, the record does not document that the veteran received any radiation exposure during service. There is no evidence that his mere presence in Hiroshima on multiple occasions several years after the atomic bomb explosion in that city resulted in any exposure to him by ionizing radiation. It should be noted that such late visits to Hiroshima do not constitute a "radiation-risk activity," as defined in § 3.309. VA's definition of "radiation-risk activity" is based on scientific reports regarding the likelihood that various activities could result in exposure to ionizing radiation. Inasmuch as the veteran's claimed Hiroshima visits are not listed as a radiation-risk activity and considering the total absence of any other evidence that he was actually exposed to ionizing radiation during service, the Board find that he was not so exposed during service. A person who submits a claim for VA benefits 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); see also Carbino v. Gober, 10 Vet. App. 507 (1997). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992), the United States Court of Appeals for Veterans Claims (Court) held that a claim must be accompanied by supportive evidence and that such evidence "must justify a belief by a fair and impartial individual' that the claim is plausible." For a claim to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Only the evidence in support of the claim is to be considered in making that determination and, generally, a presumption of credibility attaches to that evidence. Epps v. Brown, 9 Vet. App. 341, 343-44 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The quality and quantity of the evidence required to meet the veteran's burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish the claim as well grounded. However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Evidentiary assertions by the appellant must be accepted as true for purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19 (1993). However, a claimant would not meet his burden merely by presenting lay testimony, including his own, as lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet. App. at 610-11 (1992). In this case, the Board finds that scientific or other documentary evidence is required to establish that the veteran was in fact exposed to ionizing radiation during service-evidence which he, as a lay person, is not qualified to present. Although Dr. Harris' letter states that the veteran was possibly exposed to ionizing radiation during service, the Board finds that that opinion-approximately 40 years after the veteran's claimed exposure and apparently based on the veteran's own report of his exposure-is as inherently incredible as the veteran's own opinion: Dr. Harris is not shown to be any more qualified to render a scientific opinion in this area than does the veteran and the doctor's opinion does not refer to any scientific evidence to support such a conclusion. Espiritu. Accordingly, the Board finds that there is no cognizable evidence that the veteran was in fact exposed to ionizing radiation during service. The Board notes that he clearly now has myelitis and at least one physician has provided some medical evidence of a nexus between the myelitis and his claimed in-service radiation exposure. Thus, the first and third criteria for a well grounded claim have been met, as set forth by the Court in Caluza and Epps. However, in the absence of evidence that he was in fact exposed to ionizing radiation in service, the second criterion, that there be evidence of in-service incurrence or aggravation of a disease or injury, has not been met. Therefore, the Board finds that the veteran's claim is not plausible and concludes that he has not presented a well grounded claim for service connection for myelitis due to exposure to ionizing radiation in service. 38 U.S.C.A. § 5107(a). ORDER Lacking a well grounded claim, the veteran's claim for service connection for myelitis due to exposure to ionizing radiation in service is denied. C. W. Symanski Member, Board of Veterans' Appeals