Citation Nr: 21070046
Decision Date: 11/22/21 Archive Date: 11/22/21
DOCKET NO. 11-07 441
DATE: November 22, 2021
ORDER
Entitlement to service connection for thyroid cancer, to include as due to ionizing radiation, is granted.
Entitlement to service connection for myelodysplastic syndrome, to include as due to ionizing radiation, is granted.
FINDINGS OF FACT
1. Resolving all reasonable doubt in favor of the Veteran, he was exposed to ionizing radiation during service.
2. The Veteran's currently diagnosed thyroid cancer is presumed to be due to his in-service exposure to ionizing radiation.
3. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed myelodysplastic syndrome is due to his in-service exposure to ionizing radiation.
CONCLUSIONS OF LAW
1. The criteria for presumptive service connection for thyroid cancer due to in-service exposure to ionizing radiation have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
2. The criteria for service connection for myelodysplastic syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1962 to August 1966.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
In February 2015, the Veteran testified at a travel board hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board. A transcript of the hearing is of record. The Veteran was provided an opportunity for another hearing, but he indicated that he did not want another hearing and requested that the Board consider his case on the evidence of record.
In a September 2020 decision, the Board denied the claims for service connection for thyroid cancer and myelodysplastic syndrome. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Order, the Court granted an April 2021 Joint Motion for Remand (JMR) to vacate the September 2020 Board decision and remanded the claim to the Board.
Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Given the Board's favorable disposition of the claims, the Board finds that all notification and development action needed to fairly adjudicate the appeal has been accomplished.
Service Connection
1. Entitlement to service connection for thyroid cancer, to include as due to ionizing radiation, is granted.
2. Entitlement to service connection for myelodysplastic syndrome, to include as due to ionizing radiation, is granted.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).
Service connection can also be established based on radiation exposure during service. Ramey v. Brown, 9 Vet. App. 40 (1996). Specific diseases, such as thyroid cancer, may be presumptively service connected if manifest in a radiation-exposed veteran. 38 C.F.R. § 3.309 (d). A radiation-exposed veteran is one who participated in a radiation-risk activity. 38 C.F.R. § 3.309 (d)(3)(i).
The Veteran contends that his thyroid cancer and myelodysplastic syndrome are due to his in-service exposure to ionizing radiation. Specifically, the Veteran states that he was exposed to ionizing radiation while working as a missile electrician around the Titan II and Atlas "F" missiles, intercontinental ballistic missiles (ICBMs) that had nuclear warheads.
Service treatment records do not show complaints of, treatment for, or diagnosis of thyroid cancer or myelodysplastic syndrome.
Military personnel records show that the Veteran served as a missile electrical system repairment and a missile care and custody team member at the Lincoln Air Force Base from May 1963 to July 1965. He served as a Titan II missile electrical worker at the Little Rock Air Force Base from July 1965 to August 1966. Records show that the Veteran's duties at the Lincoln Air Force Base included repairing and inspecting missile electric equipment, assisting in missile ordnance installation and removal, and hauling equipment for the deactivation of the Atlas "F" missiles. His duties at the Little Rock Air Force Base included inspecting, removing, troubleshooting, and repairing missile electrical system for the Titan II missile.
In a May 2009 Radiation Risk Activity Information Sheet, the Veteran reported three years of duty around the Atlas "F" and Titan II missiles. He was stationed at the Lincoln Air Force Base from May 1963 to July 1965 and at the Little Rock Air Force Base from July 1965 to September 1966.
In a May 2009 lay statement, the Veteran asserted that his military personnel records clearly showed that his duties as a missile electrician included the circuitry that connected the missile flight controls to the nuclear warhead. However, any detailed documentation would be classified. While he conceded that he did not have specific evidence verifying his exposure to ionizing radiation, the Veteran stated that it was well-known that the warheads utilized at the Lincoln Air Force Base were "dirty" style weapons. He reported that he was frequently in close proximity with the warheads during maintenance and flight simulation testing. After service, he attended college, received a degree in business administration, and worked as a CPA and business executive. As such, he was not exposed to radiation after service.
In a May 2011 private medical opinion, Dr. Kruglyak stated that she had been treating the Veteran for pancytopenia secondary to myelodysplasia for five years. She also noted that he was diagnosed with thyroid cancer. Given the Veteran's history of exposure to ionizing radiation during service, she opined that it was at least as likely as not that his thyroid cancer and myelodysplastic syndrome resulted from his in-service exposure to ionizing radiation.
In a July 2011 private medical opinion, Dr. Vinik stated that he had been treating the Veteran since February 2010. The Veteran had a papillary thyroid cancer with resection and ablation, and myelodysplasia. During service, he was an engineer and came in close contact with nuclear warheads and, therefore, was highly likely to have been exposed to ionizing radiation. As such, it was at least as likely as not that the Veteran's thyroid cancer and myelodysplastic syndrome resulted from his in-service exposure to ionizing radiation.
At the February 2015 hearing, the Veteran and his representative contended that the circumstantial evidence showed that the Veteran was exposed to ionizing radiation during service. The Veteran described his military duties, which included being responsible for the circuitry of the missile and the mechanisms connecting the warhead to the missile. He reported that his body came into contact with the nuclear warhead as his duties involved physically going around it. Dosimeters and protective gear were not provided. The silo for the Atlas missile was underground, lined with concrete, and had blast closures. The Veteran contended that if there were any ambient radiation, it would remain in the silo. Further, there were only six such installations in the United States with only six to seven crew members for each installation. As such, there would only be 40 to 50 other individuals in the world that would have similar responsibilities as the Veteran. He stated that he had no exposure to radiation, with the exception of x-rays, aside from service. The Veteran reported that his doctors had told him that ambient radiation exposure accumulated in the body before manifesting and that it could take long periods of time for this manifestation to occur.
In February 2015 and June 2020, the Veteran submitted articles regarding the nuclear missiles at the Lincoln Air Force Base, specifically the Atlas "F" missiles.
In a February 2018 memorandum, the U.S. Department of Airforce-Master Radiation Exposure Registry (MRER) stated that missile electricians would not have participated in activities requiring prolonged close proximity to nuclear warheads. The levels of intrinsic radiation emitted from the warhead on the missile at the Little Rock Air Force base were low, requiring prolonged exposure durations at extremely close proximity to the warhead to warrant an occupational exposure concern. As such, these members were not categorized as occupationally exposed to ionizing radiation, as exposures would have been a small fraction of 100 millirem in a year.
In a February 2020 memorandum, MRER stated that studies have consistently demonstrated that Air Force exposures were low and typically will below 100 millirem in a year, with the exception of small groups of personnel that performed nuclear munitions maintenance operations on a routine basis. These operations required physically close proximities to nuclear weapons for prolonged periods of time.
In a September 2021 appellate brief, the Veteran's representative noted the Veteran's reports that he had been exposed to radiation from being constantly exposed to the nuclear warheads attached to the Atlas "F" and Titan II ICBMs. The representative highlighted that the February 2020 memorandum from MRER indicated that studies consistently demonstrated that Air Force exposures were low and typically well below 100 millirem in a year with exception of small groups of personnel that performed nuclear munitions maintenance operations on a routine basis. Referring to the Veteran's hearing testimony regarding his military duties, the representative contended that the MRER response actually confirmed that the Veteran's duties would have exposed him to radiation as he had been in close proximity to the warhead during maintenance and testing. Further, the Veteran's representative contended that there was no reason for the Board to assign less probative value to the private positive nexus opinions.
Post-service VA treatment records show that the Veteran is diagnosed with thyroid cancer and myelodysplastic syndrome.
Post-service private treatment records show that the Veteran was initially diagnosed with thyroid cancer in May 2006. He underwent a total thyroidectomy and radioactive iodine ablation in July 2006. He was also diagnosed with myelodysplastic syndrome.
Based on a careful review of all the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, his service connection claims for thyroid cancer and myelodysplastic syndrome are warranted.
As an initial matter, the Board finds that the evidence shows that the Veteran has a current diagnosis of thyroid cancer and myelodysplastic syndrome.
Further, the Board finds that, resolving all reasonable doubt in favor of the Veteran, he was exposed to ionizing radiation during service. Throughout the appeal, the Veteran has consistently reported that his military duties involved him working on and around the Atlas "F" and Titan II missiles, which have nuclear warheads. Additionally, his military personnel records corroborate his statements and, in fact, show that his duties included assisting in missile ordinance installation for the Atlas "F" missiles and inspecting, removing, and repairing the electrical system for the Titan II missile. In light of the above, the Board finds that the evidence reasonably shows that the Veteran was occupationally exposed to ionizing radiation during service.
Thyroid cancer is a disability that is considered a radiogenic disease that may be presumed to be related to ionizing radiation exposure. 38 C.F.R. § 3.309 (d). As the Board has now found that the Veteran had in-service exposure to ionizing radiation, service connection for thyroid cancer based on this presumption is warranted. 38 C.F.R. §§ 3.309 (d), 3.311.
Additionally, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran's myelodysplastic syndrome is related to his in-service exposure to ionizing radiation. The Board affords probative weight to the May and July 2011 private opinions that it is at least as likely as not that the Veteran's myelodysplastic syndrome is due to his in-service exposure to ionizing radiation as they are supported by adequate rationale and based on familiarity with the Veteran, his course of treatment, and medical literature. See Black v. Brown, 10 Vet. App. 279 (1997); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, there are no opposing medical opinions associated with the claims file and VA is not free to ignore or reject them based on its own medical judgment. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Obert v. Brown, 5 Vet. App. 30 (1993).
Therefore, resolving all reasonable doubt in favor of the Veteran, his current thyroid cancer and myelodysplastic syndrome are at least as likely as not due to his in-service exposure to ionizing radiation. Accordingly, his claims for service connection for thyroid cancer and myelodysplastic syndrome are granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
LESLEY A. REIN
Veterans Law Judge
Board of Veterans' Appeals
Attorney for the Board E. Ko, Associate Counsel
The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.