Citation Nr: 0002708 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-32 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an eye disorder as secondary to exposure to ionizing radiation. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for muscle spasms as secondary to exposure to ionizing radiation. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for headaches as secondary to exposure to ionizing radiation. 4. Entitlement to service connection for a back disorder as secondary to exposure to ionizing radiation. 5. Entitlement to service connection for a disability manifested by loss of hair as secondary to exposure to ionizing radiation. 6. Entitlement to service connection for loss of teeth as secondary to exposure to ionizing radiation. 7. Entitlement to service connection for a disability manifested by weakness of the body as secondary to exposure to ionizing radiation. 8. Entitlement to service connection for a disability manifested by swelling of the joints as secondary to exposure to ionizing radiation. 9. Entitlement to service connection for an unspecified tumor as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION The veteran served on active duty from October 1954 to October 1957. The veteran participated in Operation Plumbob in 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Issues numbered one through three listed on the front page of this decision will be addressed in the remand portion of the decision. FINDING OF FACT The claims of entitlement to service connection for a back disorder, a disability manifested by loss of hair, weakness of the body and swollen joints, loss of teeth, and an unspecified tumor as secondary to exposure to ionizing radiation are not supported by cognizable evidence demonstrating that the claims are plausible or capable of substantiation. CONCLUSION OF LAW The claims of entitlement to service connection for a back disorder, a disability manifested by loss of hair, weakness of the body and swollen joints, loss of teeth and an unspecified tumor as secondary to exposure to ionizing radiation are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background Service medical records reflect that during an October 1953 examination for enlistment into the United States Marine Corps, all of the veteran's systems were found to have been normal (with the exception of tattoos on the veteran's upper and lower extremities and mild non-disabling blepharitis). It was noted that the veteran met the dental standards for enlistment but that the examination was not conducted by a Dental Officer. On a Report of Medical History, dated in October 1953, the veteran denied having any swollen or painful joints or severe tooth or gum trouble. The examining physician noted the veteran experienced cramps in his legs after exercise. During an October 1954 examination, it was noted by the examining physician that the veteran met dental standards, however, the examination was not performed by a dental officer. It was reported that the veteran had dental caries, which were considered non-disabling. An October 1954 Report of Medical History reflects that the veteran denied having any severe tooth or gum trouble or swollen or painful joints. The appellant reported having cramps in his legs. The physician indicated that the veteran had non-disabling cramps in his legs on heavy twisting. During a June 1955 discharge and re-enlistment examination for the United States Marine Corps, the veteran was found to have had non-disabling dental caries in teeth numbered 2, 6, 7, 10, 14, 15, 22, 28 and 32. No other significant clinical findings were reported. In May 1956, the veteran complained of weakness in his hands when he woke up in the a.m. in conjunction with headaches and abdominal pains. An assessment of tension headaches was entered. A September 1957 examination for discharge reflects that all of the veteran's systems were found to have been normal. It was noted that that veteran was missing teeth numbered 2, 10, 14, 30, 31 and 19. A copy of a newsarticle, dated in July 1957, reflects that the veteran was enlisted in the United States Marine Corps and that he was involved in the first extensive troop exercise in the current series of atomic tests at Camp Desert Rock near the Atomic Energy Commission Nevada Test Site. An April 1958 VA examination report and VA outpatient reports, dated in 1979, are essentially negative for any subjective complaints or objective findings with respect to the disabilities at issue. In a letter, dated in April 1985, submitted by the Department of the Navy, Headquarters United States Marine Corps, it was indicated that the veteran participated in Shot HOOD, Operation PLUMBBOB in 1957, and that his reconstructed radiation dose was zero rem, gamma, and less than 0.001 rem, neutron. A notation, dated in July 1985, by Dr. Michael Kutscnkow, reflects that he had treated the veteran for back pain, hypertension and nervousness. However, Dr. Kutscnkow indicated that his treatment records had been destroyed three to four years previously. Medical records, submitted by Allegheny General Hospital, dated in 1972, reflect that the veteran underwent an operation for excision of multiple cysts of the maxilla and for impacted and carious teeth. The final diagnosis was dental caries (16 teeth) and inflamed radicular cysts (3) of the maxilla. A January 1986 VA examination report reflects that the veteran complained of having headaches, muscles spasms of the arms, legs and back, and low back pain as a result of having been exposed to atomic testing in the Nevada Yucca Flats in July 1956. Upon examination of the veteran, the examiner indicated that there was no evidence of any irradiation burn or residual skin lesions as a result of exposure to atomic testing in July 1956. Examinations of the lumbar and cervical spines, to include an X-ray of the lumbar spine, were negative. The examiner indicated that it was difficult to believe that the veteran's complaints were related to the claimed in-service radiation exposure. November 1991 and January 1992 Social Security Administration decisions and the medical records upon which such decision were based (private medical records, submitted by Dr. Shipkovitz, dating from 1978 to 1992) reflect that the veteran was severely impaired as a result of degenerative disc disease of the lumbar spine as a result of a March 1989 motor vehicle accident. These reports also reflect that the appellant complained of having a painful right neck and shoulder since October 1990 and was seen for complaints of right arm pain in April 1991. A July 1994 VA general medical examination report reflects that the veteran was on disability as a result of chronic low back pain, which he reported began about twenty years previously. The veteran denied any history of an injury to the low back except for a 1990 motor vehicle accident. The veteran's primary complaint was chronic low back pain which increased on lifting, bending over, or prolonged standing or walking. The veteran also complained of occasional leg pains. An assessment of chronic low back pain possibly due to degenerative joint disease was entered. A June 1997 medical report, submitted by Harvey Shipkovitz, M.D., reflects that the veteran reported a history of having been exposed to atomic testing in June 1957 at the Yucca Flats, Nevada, Atomic Proving Grounds. Dr. Shipkovitz reported that over the years, he had treated the veteran for several problems to include, neurasthenia and chronic back pain (the veteran related that he had never had back pain prior to the alleged exposure). It was Dr. Shipkovitz's belief that although the veteran exhibited some unique symptoms, it was impossible to determine with absolute certainty that any or all of the veteran's symptoms were related to the alleged radiation exposure. Finally, it was noted by Dr. Shipkovitz that the veteran was at a high risk for developing a tumor. During a June 1997 hearing at the RO in Pittsburgh, Pennsylvania, the veteran testified that he had muscle spasms as a result of exposure to ionizing radiation. The veteran indicated that he would submit evidence in support of his claim and he was granted thirty (30) days by the hearing officer to submit such evidence. However, in a letter from the veteran's representative, dated in July 1957, it was indicated that all medical evidence had been submitted regarding the veteran's claims. A July 1997 report, submitted by Dermatopathology Laboratory, reflects that the veteran had dermatofibroma of the left shin. II. Analysis With respect to all of the veteran's claims, the legal question to be answered initially is whether the veteran has presented evidence of well-grounded claims; that is, claims that are plausible. If he has not presented well-grounded claims, his appeal must fail and there is no duty to assist him further in the development of these claims. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that the claims are not well grounded. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claims for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). A disease associated with exposure to radiation listed in 38 C.F.R. § 3.309(d) (1999) will also be considered to have been incurred in-service under the circumstances outlined therein. Specifically, if a veteran participated in a radiation-risk activity, as defined by regulation, the following diseases shall be service-connected, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (1999) are also satisfied: Leukemia (other than chronic lymphocytic leukemia); cancers of the thyroid, breast, pharynx, esophagus, stomach, small intestine, pancreas, bile ducts, gall bladder, salivary gland and urinary tract; multiple myeloma; lymphomas (except Hodgkin's disease); and primary liver cancer (except if cirrhosis or hepatitis B is indicated). 38 C.F.R. § 3.309(d). In addition, service connection may be granted for a radiogenic disease listed in 38 C.F.R. § 3.311(b)(2), or if the claimant has cited or submitted competent scientific or medical evidence that the disease is a radiogenic disease, if the requirements of 38 C.F.R. § 3.311(b)(1) have been met. Radiogenic disease for the purposes of 38 C.F.R. § 3.311 (1999) means a disease that may be induced by ionizing radiation and shall include the following: All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; cancer of the thyroid, breast, lung, bone, liver, skin, esophagus, stomach, colon, pancreas, kidney, urinary bladder, salivary gland, and ovary; multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease; parathyroid adenoma; tumors of the brain and central nervous system; cancer of the rectum and lymphomas other than Hodgkin's disease, prostate cancer and any other cancer. 38 C.F.R. § 3.311(b)(2). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d. 1039 (Fed. Cir. 1994). However, the Court has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well- grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). With respect to the claims based on radiation exposure, the veteran essentially contends that he was exposed to radiation during service in June 1957 at Yucca Flats, Nevada, Atomic Proving Grounds and that he developed a back disorder, a disability manifested by a loss of hair, weakness of the body, swelling of the joints, an unspecified tumor, and a loss of teeth. Initially, the Board points out that while it has been confirmed by the Department of Defense that in 1957, the veteran participated in Shot HOOD, Operation PLUMBBOB, he has not been diagnosed with any of the disorders listed among the enumerated diseases that are entitled to presumptive service connection for radiation-exposed veterans. See 38 C.F.R. §§ 3.309(d), 3.311(b)(2). It should be pointed out that although all cancers are among the presumptive disabilities listed in 38 C.F.R. 3.311(b)(2), benign tumors of the skin, such as the veteran's dermatofibroma, is not. Moreover, he has not presented any competent scientific or medical evidence that any of the claimed disorders are otherwise related to radiation exposure. 38 C.F.R. § 3.311(b)(4). In this regard, during a January 1986 VA examination in which the veteran complained of having back pain as a result of having been exposed to ionizing radiation during service, the examiner found it difficult to conceive that such complaints were a result of any in-service radiation exposure. In addition, medical records associated with an award of Social Security disability benefits reflect that the veteran has degenerative disc disease as a result of a post-service motor vehicle accident. Finally, the veteran's private physician, Dr. Harvey Shipkovitz, indicated that while the veteran demonstrated a unique picture of symptoms, it was impossible to state with absolute certainty that the veteran's complaints (the veteran was seen for problems such as, chronic back pain, neurasthenia and lethargica) were related to exposure to ionizing radiation. In summary, the veteran has not presented any competent scientific or medical evidence that any of the claimed disorders are otherwise related to radiation exposure. 38 C.F.R. § 3.311(b)(4). The Board has thoroughly reviewed the evidence of record. The Board, however, finds that the veteran has not presented evidence of well grounded claims for service connection for a back disorder, a disability manifested by loss of hair, weakness of the body and swollen joints, loss of teeth or an unspecified tumor, currently diagnosed as dermatofibroma, as secondary to exposure to ionizing radiation. As noted earlier, the aforementioned disorders are not of the type that are statutorily entitled to presumptive service connection for radiation-exposed veterans, and the veteran has presented no evidence that such claimed disorders are radiogenic diseases. See 38 C.F.R. §§ 3.309(d), 3.311(b)(2). Moreover, the veteran has not presented evidence currently demonstrating that he has a disability manifested by loss of hair or swollen joints. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). More significantly, while the veteran has been currently diagnosed as having degenerative joint disease of the lumbar spine, neurasthenia (a disability manifested by weakness of the body), an unspecified tumor, diagnosed as dermatofibroma, and dental caries in sixteen teeth, there is no competent scientific or medical evidence establishing a nexus, or link, between any of these disorders and the veteran's military service. Despite the veteran's contentions that he currently has the claimed disorders due to his time in service, to include exposure to radiation, he has no medical expertise to offer a competent opinion. Thus, his statements alone are insufficient to establish the presence of such disorders or to relate them to an incident of his military service. See Grottveit, 5 Vet. App. at 93 (lay assertions of medical [etiology] cannot constitute evidence to render a claim well grounded under section 5107(a)); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992) (laypersons are not competent to render medical opinions). Finally, as the foregoing explains the need for competent evidence of current disabilities, if demonstrated, which are linked by competent evidence to service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disabilities on appeal. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). ORDER In the absence of evidence of well grounded claims, service connection for a back disorder, a disability manifested by loss of hair, loss of teeth, a disability manifested by weakness of the body, a disability manifested by swollen joints, and a tumor as secondary to exposure to ionizing radiation are denied. REMAND The veteran has raised the issues of entitlement to service connection for an eye disorder, muscle spasms, and headaches as secondary to exposure to ionizing radiation. These claims were denied by the RO in rating decisions dated in May 1958 and February 1986, respectively. The veteran was informed of such decisions and failed to file a timely substantive appeal with respect to either decision. As such, the decisions became final. 38 U.S.C.A. § 7105 (West 1991). In a Statement of the Case (SOC), issued in September 1997, the RO failed to set forth the provisions relating to new and material evidence in accordance with 38 C.F.R. § 3.156(a) (1999). The notice requirement contained in the Board's Rules of Practice require, inter alia, that notice of a determination include a "summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. 38 C.F.R. § 19.29 (1999). Therefore, a SSOC must be furnished to the veteran and his representative setting forth the provisions of 38 C.F.R. § 3.156(a) and Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998).. In light of the foregoing, this case is REMANDED to the RO for the following actions: The veteran and his representative should be furnished a Supplemental Statement of the Case on all laws and regulations pertaining to the issues of whether new and material evidence has been submitted to reopen the claims for service connection for an eye disorder, muscle spasms and headaches, as secondary to exposure to ionizing radiation in accordance with 38 C.F.R. § 3.156(a) and Hodge. The veteran and his representative should then be afforded an opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The Board intimates no opinion, either factual or legal, as to the ultimate outcome of this case. No action is required of the veteran until he is notified by the RO. WARREN W. RICE, JR. Member, Board of Veterans' Appeals [D]ermatofibroma, a benign, circumscribed, erythematous to brown nodular neoplasm occurring in the dermis, particularly on the lower extremities of women, often after minor trauma; it is composed of histiocytes which may differentiate to resemble fibroblasts. It is a form of benign fibrous histiocytoma." Dorlands Medical Dictionary, 28th edition, page 448.