BVA9502875 DOCKET NO. 93-03 831 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical and Regional Office Center in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection on a radiation basis for bilateral posterior subcapsular cataract. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from June 1954 to April 1958. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 1992 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Sioux Falls, South Dakota. The appeal was received and docketed at the Board in February 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has bilateral posterior subcapsular cataract which is directly attributable to his exposure to ionizing radiation during service in the course of his participation in the atmospheric testing of atomic weapons, during which he states that he engaged in a series of flights through contaminated airspace over ground zero. He acknowledges having worn film badges to monitor his exposure to ionizing radiation, but asserts that his actual exposure may have been greater than that indicated by the badges. The veteran's representative joins in his contentions, but also observes that the report of the veteran's examination by VA in January 1992 was not made available for review by the Chief Medical Director. The representative further points out that a National Academy of Sciences Report indicates that it cannot always be ascertained that film badge records accurately reflect a person's total exposure throughout his participation in a nuclear test series. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's appeal for service connection on a radiation basis for bilateral posterior subcapsular cataract. FINDING OF FACT Bilateral posterior subcapsular cataract is not a result of exposure to ionizing radiation that the veteran experienced during service. CONCLUSION OF LAW Bilateral posterior subcapsular cataract was not incurred or aggravated in service via exposure to ionizing radiation. 38 U.S.C.A. §§ 1110, 1112(c), 1131, 5107 (West 1991); 38 C.F.R. §§ 3.309, 3.311 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the veteran's claim for service connection on a radiation basis for bilateral posterior subcapsular cataract is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that this claim is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). The veteran contends that he has bilateral posterior subcapsular cataract which is directly attributable to his exposure to ionizing radiation in the course of his participation in the atmospheric testing of atomic weapons during service. In this regard, the impression on VA outpatient treatment in March 1991 was posterior subcapsular cataracts, worse in the left eye than the right, and the Board notes that such condition is recognized as a potentially "radiogenic" disease under the provisions of 38 C.F.R. § 3.311b (1993), revised by 59 Fed. Reg. 5,107 (1994) (to be codified at 38 C.F.R. § 3.311 and hereinafter 38 C.F.R. § 3.311). It is also noted that a report related to followup care re the surgical extraction of the cataract in the veteran's left eye, performed at a VA facility in June 1991, reflects secondary diagnoses including adult-onset diabetes mellitus. In December 1991, the Defense Nuclear Agency (DNA) reported that the veteran was present in 1956 during Operation REDWING and that dosimetry data reveal that he was issued three film badges which reflect that he received a total dose of 1.920 rem gamma. The DNA further reported that, due to the distances of the veteran's patrol squadron from each of the REDWING detonations, he had virtually no potential for exposure to neutron radiation. In a March 1992 memorandum, the Assistant Chief Medical Director for Environmental Medicine and Public Health (ACMD) noted that the veteran received a dose of 1.920 rem gamma irradiation at age 20; that the gamma dose was film-badge recorded; that, apart from military service, the veteran was exposed to the catactogenic action of diabetes and advancing age; and that he developed posterior subcapsular cataracts some 35 years after his exposure. The ACMD further elaborated on pertinent research, documented in cited medical studies including Health Effects of Exposure to Low Levels of Ionizing Radiation, (BEIR V), 1990, p. 363, that indicated that, although low-LET ionizing radiation can cause cataracts, the lowest dose reported to produce lens changes is 60 rad after single exposure. The ACMD concluded that, inasmuch as the veteran's dose was much lower than the foregoing threshold, it was highly unlikely that his posterior subcapsular cataracts were caused by radiation exposure in service. In a memorandum dated later that same month, following a review of the evidence in its entirety, the VA Compensation and Pension Service Director stated that it was his opinion that there was no reasonable possibility that the veteran's cataracts were the result of his inservice radiation exposure. The Board finds that the opinion of the ACMD is well reasoned and persuasive. Further, the Board notes that posterior subcapsular cataract is not among the diseases subject to presumptive service connection under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309. In light of the foregoing considerations and in the absence of any medical opinion supporting the veteran's claim, the Board concludes that the preponderance of the evidence is against service connection on a radiation basis for bilateral posterior subcapsular cataract. Accordingly, entitlement to such benefit is not in order. 38 U.S.C.A. §§ 1110, 1131, 1112(c), 5107(b); 38 C.F.R. §§ 3.309, 3.311. In reaching the foregoing determination, the Board has considered the veteran's representative's objection that the report of the veteran's examination by VA in January 1992 was not made available for review by the Chief Medical Director. In response to such objection, however, the Board would point out that such omission occasioned no prejudice to the veteran inasmuch as the substance of the examination diagnosis, namely posterior subcapsular cataract involving each eye, had been provided to the Chief Medical Director by virtue of the March 1991 VA outpatient record. Finally, the Board acknowledges the representative's assertion that a National Academy of Sciences Report indicates that it cannot always be ascertained that film badge records, on which reliance was placed in the present case to determine the veteran's total radiation dose for purposes of adjudicating his claim, accurately reflect a person's total exposure throughout his participation in a nuclear test series. In this regard, however, while the Board has no reason to dispute the foregoing observation made by the Academy, it would respectfully point out that such consideration is of no bearing in the resolution of the veteran's appeal absent any evidence documenting that the veteran, in fact, received a greater dose of radiation than is reflected by the three film badges on which DNA relied. ORDER Service connection on a radiation basis for bilateral posterior subcapsular cataract is denied. J. J. SCHULE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.