Citation Nr: 0000430 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 99-06 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for macular degeneration of the retinas, secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jason R. Davitian, Associate Counsel INTRODUCTION The veteran served on active duty from December 1959 to October 1971. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center in Wichita, Kansas (RO), which denied the benefit sought on appeal. FINDING OF FACT The veteran's claim for service connection for macular degeneration of the retinas, secondary to exposure to ionizing radiation, is not plausible. CONCLUSION OF LAW The veteran's claim for service connection for macular degeneration of the retinas, secondary to exposure to ionizing radiation, is not well-grounded. 38 U.S.C.A. § 5107(b) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran maintains, in substance, that his current macular degeneration of the retinas is the result of exposure to ionizing radiation while on active duty. The veteran has reported that he was exposed to radiation during atomic weapons testing in August 1946 at Bikini Atoll, and has submitted flight logs that he contends reflect this exposure. He also contends that exposure occurred while working around nuclear weapons in the 1960's, and has stated that all of his military occupations from 1961 to 1971 reflect the field of nuclear weapons. As the veteran continues to suffer from macular degeneration of the retinas, a favorable determination is requested. In general, a claimant with active service may be granted service connection for disease or disability when the evidence reflects that the disease or disability was either incurred in or aggravated by military service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303, 3.304 (1999). In addition, 38 C.F.R. § 3.309(d)(1999) provides that certain diseases specific to radiation-exposed veterans, not including macular degeneration of the retinas, shall be service-connected if they become manifest in a radiation- exposed veteran during his lifetime. 38 C.F.R. § 3.309(d)(3)(i) states that the term radiation-exposed veteran means "... a veteran who, while serving on active duty....[,] participated in a radiation risk activity." In this particular case, as the veteran's current disability, macular degeneration of the retinas, is not listed in section 3.309(d), presumptive service connection for macular degeneration of the retinas under section 3.309 is not warranted. The Board further notes that macular degeneration of the retinas is not cited as a radiogenic disease under 38 C.F.R. § 3.311 (1999). A final rule was promulgated and set forth at 60 Fed. Reg. 9627-28 (1994), that amended 38 C.F.R. § 3.311 to comport with Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993), in which the United States Court of Appeals for the Federal Circuit determined that section 5 of the Veteran's Dioxin and Radiation-Exposure Compensation Standards Act of 1984, Pub. L. No. 98-542, 98 Stat. 2725, 2727-29, did not preclude, or authorize VA to preclude, a claimant from proving that he or she developed a disability as a result of exposure to ionizing radiation under the provisions of 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(d), despite the fact that the claimed disability is not a potentially radiogenic disease under 38 C.F.R. § 3.311b (now 3.311). In such cases, a claimant must be given an opportunity to prove that exposure to ionizing radiation during service actually caused the claimed disability and that service connection is therefore warranted under 38 U.S.C.A. §§ 1110, 1131, and 38 C.F.R. § 3.303(d). Further, the above-mentioned final rule deletes 38 C.F.R. § 3.311(h), which established a list of diseases exclusive to radiation exposure, and redefines the term "radiogenic disease" as a disease that may be induced by ionizing radiation. 60 Fed. Reg. 9627. There exists no competent (medical) evidence of record that the disability at issue may be induced by ionizing radiation exposure. The threshold issue is therefore whether the veteran has presented a well-grounded claim for service connection for macular degeneration of the retinas, secondary to exposure to ionizing radiation. In this regard, the veteran has "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)(West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Grivois v. Brown, 6 Vet. App. 136, 140 (1994). The veteran must satisfy three elements for the claim for service connection for macular degeneration of the retinas, secondary to exposure to ionizing radiation, to be well- grounded. Initially, there must be competent (i.e. medical) evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) and Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Secondly, there must be evidence of an incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence. Layno v. Brown 6 Vet. App. 465, 469 (1994). Finally, there must be evidence of a nexus between the in-service injury or disease and the current disability, as shown through medical evidence. Latham v. Brown, 7 Vet. App. 359, 365 (1995). The veteran's service medical records are negative for complaints, findings, symptoms, or diagnoses of macular degeneration. Service medical records show that in April 1965, the veteran complained of blurred distance vision. On examination, lens and media were clear and fundi were negative. In August 1965, the veteran complained of blurred near vision. On evaluation, lens and media were clear and fundi were negative. The veteran was provisionally assessed with R/O acute glaucoma and R/O acute iritis in December 1970. A corresponding ophthalmologic evaluation did not result in an assessment or diagnosis. Regarding whether the veteran was exposed to radiographic examination while on active duty, the Board points out that a Department of Defense Form 1141, Record of Occupational Exposure to Ionizing Radiation, reflects that for the period from July 1, 1970, to August 11, 1970, the veteran did not receive a dose of radiation. Correspondence dated in September 1997 from the Defense Special Weapons Agency notes that VA defines the operational period for Operation CROSSROADS at Bikini Atoll as from July 1, 1946 to August 31, 1946. Flight logs from the veteran's patrol squadron show that the veteran was with his patrol squadron at Guam from July 7, 1946 until September 25, 1946. The flight logs do not identify the veteran as having been on the single flight the squadron made to Bikini Atoll in July 1946. The flight logs show that he flew to Kwajalein once, approximately 178 miles from Bikini Atoll, but personnel stationed there are precluded from consideration as participants of CROSSROADS unless their duties were in direct support of the operation. Flight logs for the veteran's squadron patrol for August 1946 were unavailable, having been destroyed prior to 1992. The agency concluded that no documentary evidence had been located which placed the veteran at the site of any US nuclear testing. The agency noted that while it was unable to document the veteran's presence in at Bikini in 1946, it was also unable to state definitively that he was not there. The veteran's post-service private and VA medical records do show a current diagnosis of macular degeneration of the retinas. However, they do not provide competent evidence, such as a medical opinion, showing a nexus or link between the veteran's current macular degeneration of the retinas and exposure to radiation during active service. Ideally, such an opinion would be based on a review of the record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Because of the lack of competent evidence of such a relationship in this case, the veteran's claim for service connection for macular degeneration of the retinas is not well-grounded and the appeal must be denied. For example, private treatment reports dated from 1989 to 1996 show that the veteran had various assessments of decreased visual acuity. A private medical report dated in November 1989 notes that the veteran was experiencing macular degeneration. An April 1992 private treatment report provides an assessment of retinal detachment with legal blindness. An April 1996 private report provides that the veteran had a diagnosis of macular degeneration of both eyes, qualifying him as legally blind. The report of a January 1997 VA visual examination resulted in a diagnosis of macular degeneration with atrophic scars, bilateral. All of these medical records are negative for any indication or opinion that the veteran's current macular degeneration of the retinas is related to exposure to ionizing radiation during active duty. The Board recognizes that the veteran has made his own contentions regarding the cause of his current macular degeneration of the retinas. While the veteran is competent to describe his observations, as a layperson, he is not competent to provide an opinion requiring medical knowledge, such as a medical diagnosis or etiology. Id. Accordingly, his testimony does not constitute competent medical evidence that his current macular degeneration of the retinas is the result of exposure to ionizing radiation during his active service. Because of the lack of competent medical evidence linking the veteran's current macular degeneration of the retinas to exposure to ionizing radiation during his active duty, his claim is not well-grounded and the appeal is thus denied. ORDER Evidence of a well-grounded claim for service connection for macular degeneration of the retinas, secondary to exposure to ionizing radiation, not having been received, the appeal is denied. U. R. POWELL Member, Board of Veterans' Appeals