PLEASE NOTE: No radiation dose assessment was asked for by the VBA in this case as has been done in multiple other VA Titan II missile radiation claims. Although, multiple VBA requests have been asked for in prior and pending radiation VBA cases for the Titan II 10 megaton warhead radiation no assessment has ever been given to the VBA by the Under Secretary for Health as contemplated in 38 C.F.R. that is on the record of VBA cases.
This lack of transparency by the VA and VBA is notably disturbing. Oak Ridge, Tennessee labs disassembled these old warheads(the final ones in 2012) and has the data for any radiation leakage. I think the VBA has the responsibility to make these reports available for these obsolete warheads. To continue to shove this under the rug is disgraceful to all veterans who served. If the data from Oak Ridge shows that there was no radiation leakage from nuclear warheads then that proof would be welcome by all service members who served by any nuclear warheads.
Citation Nr: 0613925
Decision Date: 05/12/06 Archive Date: 05/25/06
DOCKET NO. 04-20 265 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for multiple myeloma,
claimed as due to exposure to ionizing radiation.
2. Entitlement to service connection for a depressive
disorder, claimed as secondary to multiple myeloma.
3. Entitlement to service connection for end stage renal
disease, claimed as secondary to multiple myeloma.
4. Entitlement to service connection for bilateral
peripheral neuropathy of the lower extremities, claimed as
secondary to multiple myeloma.
5. Entitlement to service connection for bilateral
peripheral neuropathy of the upper extremities, claimed as
secondary to multiple myeloma.
6. Entitlement to service connection for a lung disorder,
claimed as secondary to multiple myeloma.
7. Entitlement to service connection for loss of a big
toenail, claimed as secondary to bilateral peripheral
neuropathy.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
Rebecca Feinberg, Associate Counsel
INTRODUCTION
The veteran had active service from January 1968 to January
1972.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a September 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. The preponderance of the evidence demonstrates that the
veteran was not exposed to ionizing radiation during active
military service.
2. The competent and probative medical evidence of record
preponderates against a finding that the veteran's multiple
myeloma is etiologically related to any incident of service,
to include exposure in service to ionizing radiation.
3. The record does not contain any competent and probative
evidence establishing that the veteran's post-service
diagnosis of a depressive disorder is either etiologically
related to service or to a service-connected disability.
4. The record does not contain any competent and probative
evidence establishing that the veteran's post-service
diagnosis of end stage renal disease is either etiologically
related to service or to a service-connected disability.
5. The record does not contain any competent and probative
evidence establishing that the veteran's bilateral peripheral
neuropathy of the lower extremities is either etiologically
related to service or to a service-connected disability.
6. The record does not contain any competent and probative
evidence establishing that the veteran's bilateral peripheral
neuropathy of the upper extremities is either etiologically
related to service or to a service-connected disability.
7. The record does not contain any competent and probative
evidence establishing that the veteran's claimed post-service
diagnosis of a lung disorder is either etiologically related
to service or to a service-connected disability.
8. The record does not contain any competent and probative
evidence establishing that the veteran's claimed post-service
diagnosis of loss of a big toenail is either etiologically
related to service or to a service-connected disability.
CONCLUSIONS OF LAW
1. Multiple myeloma was not incurred in or aggravated by
active service, nor may it be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2005).
2. A depressive disorder was not incurred in or aggravated
by active service, nor is it secondary to a service-connected
disability. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.303, 3.310 (2005).
3. End stage renal disease was not incurred in or aggravated
by active service, nor is it secondary to a service-connected
disability. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.303, 3.310 (2005).
4. Bilateral peripheral neuropathy of the lower extremities
was not incurred in or aggravated by active service, nor is
it secondary to a service-connected disability. 38 U.S.C.A.
§§ 1101, 1110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303,
3.310 (2005).
5. Bilateral peripheral neuropathy of the upper extremities
was not incurred in or aggravated by active service, nor is
it secondary to a service-connected disability. 38 U.S.C.A.
§§ 1101, 1110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303,
3.310 (2005).
6. A lung disorder was not incurred in or aggravated by
active service, nor is it secondary to a service-connected
disability. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.303, 3.310 (2005).
7. Loss of a big toenail was not incurred in or aggravated
by active service, nor is it secondary to a service-connected
disability. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp.
2005); 38 C.F.R. §§ 3.303, 3.310 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005);
38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and (4) must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App.
112 (2004); see Mayfield v. Nicholson, No. 05-7157 (Fed. Cir.
Apr. 5, 2006).
In Pelegrini, the U.S. Court of Appeals for Veterans Claims
held, in part, that a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable RO decision on a claim for VA benefits. In the
present case, this was done.
In the Mayfield case, the U.S. Court of Appeals for the
Federal Circuit addressed the meaning of prejudicial error
(38 U.S.C.A. § 7261(b)), what burden each party bears with
regard to the Court's taking due account of the rule of
prejudicial error, and the application of prejudicial error
in the context of the VCAA duty to notify (38 U.S.C.A.
§ 5103(a)). The Federal Circuit held, in effect, that the
Board must specify what documents satisfy the duty to provide
notice to a claimant, and that the Court of Appeals for
Veterans Claims must, if a case is appealed to the Court,
specifically review the Board's findings regarding such
notice. Considering the decisions in Pelegrini and Mayfield,
the Board finds that the requirements of the VCAA have been
satisfied in this matter, as discussed below.
In a November 2002 letter, the RO informed the veteran of its
duty to assist him in substantiating his claims under the
VCAA, and the effect of this duty upon his claims. In
addition, the veteran was advised, by virtue of a detailed
May 2004 statement of the case (SOC) and December 2004
supplemental statement of the case (SSOC) issued during the
pendency of this appeal, of the pertinent law, and what the
evidence must show in order to substantiate his claims. We
therefore believe that appropriate notice has been given in
this case. Further, the claims file reflects that the May
2004 SOC contained the new duty-to-assist regulation codified
at 38 C.F.R. § 3.159 (2005). See Charles v. Principi, 16
Vet. App. 370, 373-74 (2002). As the Federal Circuit Court
has stated, it is not required "that VCAA notification must
always be contained in a single communication from the VA."
Mayfield, supra, slip op. at 9.
The Board concludes that the notifications received by the
veteran adequately complied with the VCAA and subsequent
interpretive authority, and that he has not been prejudiced
in any way by the notice and assistance provided by the RO.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993);
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it
appears that all obtainable evidence identified by the
veteran relative to his claims has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal. While the veteran indicated
that additional records were available at the Oregon Health &
Science University (OHSU), he never provided the RO with a
signed release to request these medical records. The RO
requested this release in the November 2002 letter and
provided the veteran with the form. Without this release,
the RO may not request these private records. Therefore, all
due process has been met with respect to these medical
records. For the reasons set forth above, any failure in the
timing or language of VCAA notice by the RO constituted
harmless error.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claims, under both
former law and the VCAA. The Board, therefore, finds that no
useful purpose would be served in remanding this matter for
yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). See also Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc).
In addition to the foregoing harmless-error analysis, to
whatever extent the recent decision of the Court in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
requires more extensive notice in claims for compensation,
e.g., as to potential downstream issues such as disability
rating and effective date, the Board finds no prejudice to
the veteran in proceeding with the present decision. Since
the claims for service connection are being denied, no
effective date will be assigned, so there can be no
possibility of any prejudice to the veteran.
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002 &
Supp. 2005). When there is an approximate balance in the
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002 & Supp. 2005); 38 C.F.R. §
3.102 (2005).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
II. Service Connection Claims
A. Applicable Law and Regulations
Service connection may be granted for disability which is the
result of disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2005); 38
C.F.R. § 3.303(a) (2005). Service connection is also
appropriate for disability manifested after discharge from
service, when all of the evidence establishes that such
disease was incurred in service. 38 C.F.R. § 3.303(d); see
Cosman v. Principi, 3 Vet. App. 303, 305 (1992).
The U.S. Court of Appeals for Veterans Claims has held that,
in order to prevail on the issue of service connection, there
must be medical evidence of a (1) 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 the claimed in-
service disease or injury and the present disease or injury.
Hickson v. West, 12 Vet. App. 247, 253 (1999).
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. See Degmetich v.
Brown, 104 F. 3d 1328 (1997) (affirming VA's interpretation
of section 1110 of the statute as requiring the existence of
a present disability for VA compensation purposes); see also
Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992).
Where there is a chronic disease shown as such in service or
within the presumptive period under 38 C.F.R. § 3.307 so as
to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date,
however, remote, are service-connected, unless clearly
attributable to intercurrent causes. 38 C.F.R. § 3.303(b).
This rule does not mean that any manifestation in service
will permit service connection. To show 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."
When the disease identity is established, there is no
requirement of evidentiary showing of continuity. 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).
In addition, service connection is warranted for a disability
which is aggravated by, proximately due to, or the result of
a service-connected disease or injury. 38 C.F.R. § 3.310.
Any additional impairment of earning capacity resulting from
a service-connected condition, regardless of whether or not
the additional impairment is itself a separate disease or
injury caused by the service-connected condition, also
warrants compensation. Allen v. Brown, 7 Vet. App. 439
(1995) (en banc). When service connection is thus
established for a secondary condition, the secondary
condition is considered a part of the original condition.
Id.
Service connection for disability that is claimed to be
attributable to exposure to ionizing radiation during service
can be demonstrated by several different methods. Davis v.
Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet.
App. 67, 71 (1997). First, there are certain disabilities
that are presumptively service connected, specific to
radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R.
§ 3.309(d). Second, when a "radiogenic disease" first
becomes manifest after service, and it is contended that the
disease resulted from exposure to ionizing radiation during
service, various development procedures must be undertaken in
order to establish whether or not the disease developed as a
result of exposure to ionizing radiation. 38 C.F.R. §
3.311(a)(1). Third, even if the claimed disability is not
listed as a presumptive disease under 38 C.F.R. § 3.309(d) or
as a radiogenic disease under 38 C.F.R. § 3.311, service
connection must still be considered under 38 C.F.R. §
3.303(d) in order to determine whether the disease diagnosed
after discharge was incurred during active service. See
Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
A "radiation-exposed veteran" is defined by 38 C.F.R. §
3.309(d)(3)(i) as either a veteran who while serving on
active duty, or an individual who while serving on active
duty for training or inactive duty training, participated in
a radiation-risk activity. "Radiation-risk activity" is
defined to mean onsite participation in a test involving the
atmospheric detonation of a nuclear device; the occupation of
Hiroshima, Japan, or Nagasaki, Japan, by United States forces
during the period beginning on August 6, 1945, and ending on
July 1, 1946; or internment as a prisoner of war (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 occupational forces in Hiroshima or
Nagasaki during the period from August 6, 1945, through July
1, 1946. 38 C.F.R. § 3.309(d)(3)(ii).
Diseases specific to radiation-exposed veterans for the
purpose of presumptive service connection are the following:
(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; (xv) cancer of the
urinary tract; (xvii) cancer of the bone; (xviii) cancer of
the brain; (xix) cancer of the colon; (xx) cancer of the
lung; and (xxi) cancer of the ovary. 38 C.F.R. §
3.309(d)(2).
As to the second method for establishing service connection,
the provisions of 38 C.F.R. § 3.311 provide for development
of claims based upon a contention of radiation exposure
during active service and post-service development of a
radiogenic disease. The purpose of these provisions is to
relieve claimants of the burden of having to submit evidence
to show that their cancer may have been induced by radiation.
These provisions do not give rise to a presumption of service
connection, but rather establish a procedure for handling
claims brought by radiation-exposed veterans or their
survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed.
Cir. 1997).
The governing regulation essentially states that, in all
claims in which it is established that a radiogenic disease
first became manifest after service, and it is contended that
the disease resulted from radiation exposure, a dose
assessment will be made. Dose data will be requested from
the Department of Defense in claims based upon participation
in atmospheric nuclear testing, and claims based upon
participation in the American occupation of Hiroshima or
Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. §
3.311(a)(2).
For purposes of 38 C.F.R. § 3.311, a "radiogenic disease"
is defined as a disease that may be induced by ionizing
radiation, and specifically includes the following: thyroid
cancer, breast 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, lymphomas other
than Hodgkin's disease, prostate cancer, and any other
cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv) (2005). Section
3.311(b)(5) requires, as pertinent herein, that prostate
cancer became manifest five years or more after exposure.
When the dose estimates provided pursuant to paragraph (a)(2)
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)(1).
B. Facts and Analysis
1. Multiple Myeloma
As noted above, service connection based upon exposure to
ionizing radiation may be established under the provisions of
38 C.F.R. § 3.309(d), 38 C.F.R. § 3.311, or on the basis of
direct, or in certain cases presumptive, service connection.
See Rucker v. Brown, 10 Vet. App. 67, 71 (1997).
Upon review, the Board finds that the service medical records
are negative for any complaints, evidence, or treatment of
in-service incurrence of multiple myeloma.
The veteran contends that he has multiple myeloma as a result
of exposure to ionizing radiation in service. Although the
veteran's claimed diagnosis of multiple myeloma is listed
among the diseases specific to radiation-exposed veterans as
outlined in 38 C.F.R. § 3.309(d), the record does not show,
and the veteran does not contend, that he participated in a
radiation-risk activity as defined by 38 C.F.R.
§ 3.309(d)(3)(ii), such that he is considered to be a
radiation-exposed veteran as defined by 38 C.F.R. §
3.309(d)(3)(i). Therefore, presumptive service connection
under this section is not for application.
The veteran's claimed diagnosis of multiple myeloma is listed
among the diseases that may be induced by ionizing radiation,
termed "radiogenic disease" as outlined in 38 C.F.R. §
3.311. The veteran asserted in a March 2003 written
statement that he was exposed to radiation during his service
with the Air Force. He stated that during three-and-a-half
years, he served as a deputy missile combat crew commander
and a missile combat crew commander at Little Rock Air Force
Base in Jacksonville, Arkansas. In this regard, he stated he
often accompanied the missile facilities technician on his
daily check of the missile silo. He also indicated he was
present when both the missile and the re-entry vehicle, which
contained the nuclear material, were being recycled during
his alert shifts. While he was unable to estimate whether
or, if so, how much he was exposed to radiation, he stated
the belief that the increased proximity involved in those
duties qualified him to be categorized as a former nuclear
worker during his military service.
The veteran's personnel records confirm that he was stationed
at Little Rock Air Force Base in Arkansas for nearly all of
his active military duty. His duty title was with the
strategic missile squadron with SAC (Strategic Air Command)
in Little Rock. He was both a missile combat crew commander
and a deputy missile combat crew commander. He was awarded
the Missleman Badge.
The veteran's service medical records are silent with regard
to any exposure to radiation. They do indicate that he
underwent annual missile crew physical examinations.
In an effort to develop the information necessary for
adjudication of the veteran's claims, the RO contacted the
National Personnel Records Center (NPRC) in May 2003,
requested the veteran's personnel file, and asked the NPRC to
furnish a DD Form 1141, if available, or any other records of
exposure to radiation. In a July 2003 request, the RO asked
the NPRC to provide any Officer Evaluation Reports contained
in the veteran's claims file. The veteran had indicated that
they would contain records of his radiation exposure.
In June 2003, the NPRC responded that a search of the
veteran's file revealed no DD Form 1141 with regard to
exposure to radiation. In an additional response dated in
July 2003, the NPRC indicated that there was no information
pertaining to exposure to radiation located in the veteran's
file.
Based on this response from the NPRC, the RO did not send the
veteran's records to the Under Secretary for Health for
preparation of a dose estimate. This is because there were
no records found with regard to the veteran's claimed
exposure to ionizing radiation. The Board finds also that
submission of the veteran's records to the Under Secretary
for Health for preparation of a dose estimate is not
warranted because there are no records in the veteran's
claims file that show exposure to ionizing radiation.
Therefore, a dose estimate could not be made. Additionally,
the Board finds that the RO properly developed the veteran's
claim by requesting all possible information from the NPRC.
However, since no documentation was found, and the veteran
did not provide any documentation of exposure to radiation,
further development of the claim under the provisions of 38
C.F.R. § 3.311 is not warranted. Therefore, service
connection on this basis is not found.
Finally, the Board must determine whether direct service
connection is warranted for this disorder. The claims file
reflects that the veteran has a current diagnosis of multiple
myeloma. As noted above, the veteran's service medical
records are silent for any complaints or diagnoses related to
multiple myeloma.
Three documents are pertinent to this claim. In an August
2003 written statement, the veteran indicated that he spoke
with D.W., an Engineering Supervisor at the Hazardous
Materials Division of the Arkansas Department of
Environmental Quality. The veteran indicated that D.W.
stated that, although he could not quote a specific source,
there was always an understanding that there was low level
radiation leakage at the Titan II missile sites. This was
because uranium always radiated unless there was specialized,
very heavy lead containment, which would have been
impractical for use in this instance.
In an August 2003 written statement, S.C., M.D., indicated he
was the veteran's primary oncologist since his diagnosis of
multiple myeloma in December 1999. Dr. C stated that
research regarding the epidemiology of multiple myeloma
points consistently to the critical role of environmental and
occupational exposure in the rapidly increasing incidence of
the disease. After reviewing the veteran's occupational and
family history, Dr. C concluded that his service as a missile
crew commander stood out as the one thing more likely than
not to be a causative factor in his disease. He indicated
that, had the veteran not served in this manner, in close
proximity to many different nuclear warheads, it is extremely
unlikely that he would have multiple myeloma today. Dr. C
noted that no one else in the veteran's family had a history
of a similar disease. Therefore, this counted against
childhood exposure to environmental causes. He further
stated that, if the veteran had been exposed in childhood, he
would have developed the disease earlier than at 56 years of
age. Finally, Dr. C indicated that if, as D.W. stated in
August 2003, there was always low level radiation leakage at
the Titan II missile sites, there was absolutely no doubt
that was the cause of the veteran's multiple myeloma.
Finally, in a September 2003 written statement, W.R., an
Environmental Geologist and Project Manager with the Kansas
Department of Health and Environment, provided a list of
toxic substances or contaminants known to have been present
and used at the Titan II Missile Sites in Kansas. These
included aroclor 1254, hydrazine and unsymmetrical dimethyl
hydrazine, nitrogen tetroxide, trichloroethylene, and other
compounds such as diesel fuels, hydraulic fluids,
trifluoroacetic acid, trichlorotrifluoroethane, carbon
tetrachloride, Stoddard solvent, methylene chloride,
perchloroethylene, methyl ethyl ketone, and toluene.
The Board acknowledges Dr. C's opinion that the veteran's
multiple myeloma is likely related to exposure to uranium
radiation in service. However, there is no objective
evidence in the claims file to show the veteran was exposed
to such radiation while serving as a missile combat crew
commander. First, as noted above, there is no evidence in
the veteran's service medical or personnel records that he
incurred any exposure to ionizing radiation. Furthermore,
the report the veteran submitted from the Kansas Department
of Health and Environment, regarding the toxic substances
known to have been used at the missile sites at which the
veteran says he was present, did not indicate any ionizing
radiation. While toxic substances and contaminants were
noted, none was indicated to be uranium. In addition, none
of those substances was indicated in that report to be linked
to development of multiple myeloma or cancers of any type.
Therefore, the Board concludes that Dr. C's opinion, relating
the veteran's multiple myeloma to uranium radiation in
service, cannot be afforded probative evidentiary weight,
since there is no evidence that those who worked at those
missile sites were exposed to uranium or any ionizing
radiation. We note, with all due respect, the veteran's
opinion that he was exposed to ionizing radiation in service,
and also acknowledge his August 2003 written statement, in
which he indicated that a person at the Arkansas Department
of Environmental Quality told him that there was always low
level radiation leakage at these missile sites. However, the
August 2003 written statement acknowledged that there was no
source for this information, just a general understanding.
In addition, the veteran has not contended that he had
evidence of such radiation, but merely expressed a general
feeling that he was exposed to uranium leakage while in
service.
The Board finds that there is no evidence contained in the
claims file which shows that the veteran was exposed to
ionizing radiation or uranium in service. Therefore, there
is no competent medical opinion of record that links the
veteran's currently diagnosed multiple myeloma to any event
or incident in service.
In summary, the preponderance of the evidence is against
granting service connection either on a direct basis or on
any presumptive basis, including pursuant to the provisions
of 38 C.F.R. § 3.311. The claim for service connection for
multiple myeloma as a result of ionizing radiation exposure
must, therefore, be denied. The benefit of the doubt rule is
not for application. Gilbert, supra; Ortiz v. Principi, 274
F.3d 1361, 1365 (Fed. Cir. 2001) (benefit of doubt rule does
not apply when preponderance of evidence is against a claim).
2. Depressive Disorder, Renal Disease, Peripheral
Neuropathy,
Lung Disorder
The veteran has raised claims of entitlement to service
connection for depressive disorder, end stage renal disease,
bilateral peripheral neuropathy of the lower extremities,
bilateral peripheral neuropathy of the upper extremities, and
a lung disorder, all claimed as secondary to multiple
myeloma. However, since, as indicated above, service
connection for multiple myeloma is denied, service connection
for these disorders as secondary to multiply myeloma cannot
be granted. 38 C.F.R. § 3.310. However, direct service
connection must still be considered for these claimed
disorders.
With regard to the veteran's claims of entitlement to service
connection for these disorders, the Board notes that the
veteran's service medical records are silent for any
complaints or diagnoses of any depression, renal disease,
peripheral neuropathy of the extremities, or a lung disorder.
Post-service, the veteran's depressive disorder was first
diagnosed in July 2003. The VA examiner determined that it
was secondary to his multiple myeloma.
Private medical records show the veteran was first treated
for renal disease in December 1999. The etiology at that
time was determined to be from NSAIDS (non-steroidal anti-
inflammatory drugs). An October 2002 private record shows
there were three liver lesions of concern for metastatic
disease. Impaired renal function was also noted in the July
2003 VA examination report.
The veteran's peripheral neuropathy was noted during his July
2003 VA examination. It was indicated to be due to the
chemotherapy the veteran received as part of his treatment
for multiple myeloma.
With regard to a lung disorder, a pulmonary function test was
performed in August 2000, which produced results within
normal limits. A December 2002 private treatment record
shows the veteran's lungs were normal. The July 2003 VA
examination report indicates that a pulmonary function tests
showed no obstruction or restriction. Diffusion capacity was
mildly reduced.
As to all of these claims, the Board finds that there is a
lack of evidence that they are directly related to the
veteran's military service. The depressive disorder and
peripheral neuropathy were specifically related to the
veteran's non-service-connected multiple myeloma. With
regard to the renal and lung disorders, there is no evidence
that they began in service and no evidence of their
incurrence until December 1999, more than 25 years after
separation from service. Finally, there is no competent
medical evidence of record that links any of these disorders
directly with the veteran's military service.
As the evidence preponderates against the claims of
entitlement to service connection for depressive disorder,
end stage renal disease, bilateral peripheral neuropathy of
the lower extremities, bilateral peripheral neuropathy of the
upper extremities, and a lung disorder, all claimed as
secondary to multiple myeloma, the benefit-of-the-doubt
doctrine is inapplicable, and the claims must be denied.
38 U.S.C.A. § 5107(b); Gilbert, supra.
3. Loss of Toenail
The veteran has raised a claim of entitlement to service
connection for loss of his big toenail, claimed as secondary
to bilateral peripheral neuropathy. However, as noted above,
service connection for bilateral peripheral neuropathy has
been denied. Therefore service connection for loss of the
big toenail as secondary to bilateral neuropathy must also be
denied. 38 C.F.R. § 3.310.
With regard to direct service connection, the Board notes
that the veteran's service medical records are negative for
any complaints or diagnoses related to the veteran's toenail.
Post-service private medical records show that he underwent
excision of his nail in September 2002. A September 2003 VA
examination report shows the veteran's right great toenail
was removed because it was ingrown and infected. It later
grew back normally, and the veteran had no deformity or
complaints related to the toenail since that time.
Without a current diagnosis, service connection may not be
granted. Degmetich, supra. In addition, there is no medical
evidence that relates the veteran's toenail removal directly
with his military service. Therefore, as the evidence
preponderates against the claim of entitlement to service
connection for loss of a big toenail, claimed as secondary to
bilateral peripheral neuropathy, the benefit-of-the-doubt
doctrine is inapplicable, and the claim must be denied.
38 U.S.C.A. § 5107(b); Gilbert, supra.
ORDER
Service connection for multiple myeloma, claimed as due to
exposure to ionizing radiation, is denied.
Service connection for depressive disorder, claimed as
secondary to multiple myeloma, is denied.
Service connection for end stage renal disease, claimed as
secondary to multiple myeloma, is denied.
Service connection for bilateral peripheral neuropathy of the
lower extremities, claimed as secondary to multiple myeloma,
is denied.
Service connection for bilateral peripheral neuropathy of the
upper extremities, claimed as secondary to multiple myeloma,
is denied.
Service connection for a lung disorder, claimed as secondary
to multiple myeloma, is denied.
Service connection for loss of the big toenail, claimed as
secondary to bilateral peripheral neuropathy, is denied.
_________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs