The Veteran served on active duty from February 1957 to February 1961.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office {RO) in 8eattle, Washington.
In March 2013, the Veteran testified at a Travel Board hearing before the
undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file.
This case was before the Board in April 2013 when it was referred to the Veterans Health Administration (VHA) for a medical expert opinion. An opinion was obtained in June 2013.
Please note this appeal has been advanced on the Board's docket pursuant to
38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
1. A March 1976 Board decision denied the Veteran's claim of entitlement to
service connection for cataracts.
2. Evidence associated with the claims file after the last final denial in March 1976 is neither cumullative nor redundant of the evidence of record at that time and, when considered with the previous evidence of record, raises a reasonable possibility of substantiating the claim.
3. Affording tlile Veteren the benefit of the doubt, bilateral cataracts are related to service.
CONCLUSION OF LAW
l. The March 1976 Board decision is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. § :20.1100 (2012).
2. Evidence reiceived since the March 1976 Board decision in connection with Veteran's request to reopen a claim of service connection for cataracts is new and material and thie claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.1S6(a) (2012).
3. Bilateral cataracts were incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist
VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.l56(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.
II. Application to Reopen
In a March 1976 Board decision the Veteran's claim of entitlement to service connection for c:ataracts was denied. This decision indicates that the basis for the denial was a lack of presence of any eye disability in service, the discovery of cataracts many years after service, and the lack of evidence associating the cataracts to exposure to radiation during service.
The evidence before VA at the time of the prior final decision consisted of the Veteran's service treatment records, the report of an independent medical examination dated in February 1976, and VA treatment records.
The March 1976 Board decision became final based on the evidence then of record. 38 U.S.C.A. §§ 710:3, 7104(a); 38 C.F.R. § 20.1100.
The claim of entitlement to service connection for cataracts may be reopened if new and material evidence is submitted. Manio v. Derwinslci, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in February 2007. Under the law in effect at the time he filed his claims new evidence means existing evidence not previously submined to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidenice can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for detemlining whether new and material evidence raises a.reasonable possibility of substantiating a claim is "low", See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in detennining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specificaJly to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principt, 3 Vet. App. 510 (1992).
As noted above:, the: Veteran filed his current claim of entitlement to service connection for cataracts in February 2007. In June 2013 a VA medical expert
opinion was obtained. The expert rendered the opinion that the cataract is at least as likely as not related to the Veteran's active service.
The Board finds that this evidence is both new and material. The evidence is new as it was not of record at the time of the prior denial. The evidence is also material in that it indicates that the Veteran's cataracts are related to the Veteran's active
service. In light of the above, the Board finds that the evidence received in
conjunction wi1th the Veteran's request to reopen his previously disallowed claim is both new and material and, therefore, the request to reopen the previously denied claim of entitlement to service connection for cataracts is granted. 38 C.F.R. § 3.156(a).
III. Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R.
§3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (I) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-servllce disease and the present disability. See Davidson v. Shinseki, 581 F .3d 1313 (Fed,, Cir. 2009); Jandreau v. Nicholson, 492 F .Jd 13 72 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), afFd per curiam, 78 F .3d 604 (Fed. Cit. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during servicee (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, a showing of continuous symptoms should still be a factor for consideration of whether a causal re]ationship exists between a Veteran's current disability and any in-service incident.
In making all determininations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465,470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (I) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medjcal diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering wh,ether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shtnsekt, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.Jd at 1376-77.
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden 11. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362,367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Fed•:ral Circuit (Federal Circuit). citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(m) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to eigh and assess the evidence. Bryan v. Wesl, 13 Vet. App. 482, 488-89 (2000); Wilson v. Denvinski, 2 Vet. App. 614,618 (1992).
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 1 Vet. App. 498,511 (1995), afTd per curiam, 78 F .3d 604 (Fed. Cir. 1996).
The Veteran seeks entitlement to service connection for residuals of post operative cataract extraction, left eye, and entitlement to service connection for cataract of the right eye. The Veteran contends that his cataracts are related to exposure to radiation in service.
The Veteran was noted to have eye trouble with headaches when working in dark rooms and has worn glasses for six years upon examination at separation from service in January 1961. Service personnel records reveal that the Veteran worked as an x-ray technician. Dosimetry from the Veteran's period of service reveals that the Veteran was exposed to radiation. After service the Veteran developed and was treated for cataracts of both eyes.
A VA treatment note indicates that the Veteran was diagnosed with right and left eye cataracts as early as May 1974, 13 years after separation from service. The Veteran reported illl June 1974 that he had painless progressive loss of vision in the left eye for the prior two years.
In March 1975 the Veteran reported that he believed that the development of his cataracts was accelerated by prolonged exposure to radiation while in the military. He stated that while working taking x-rays he wore a lead apron but that this did not cover his head. He reported that as early as 1965 he was having trouble with lights and primarily night driving and that he started using photo grey lenses that would reduce the glare.
In February 1976 tbe Veteran's records were reviewed by an independent medical examiner. The expert stated that at least a major part of the Veteran's service experience was as a diagnostic radiology technician. The expert reported that the Veteran's activities as an x-ray technician, as described in the material, appeared to be the well accepted routine activities that would be expected in the average department of radiology. The policies for radiation protection appeared to be those of the usual accepted practice.
The Veteran was noted to report that he first experienced symptoms associated with cataract formation in 1965 and that in June 1974 he underwent extraction of a cataract from his left eye. The medical expert reported that a cataract can appear as long as four years after radiation exposure to the eyes. It was explained that the latent period from the time of x-ray exposure to the time of appearance of cataract can be this long or longer.
The medical expert noted that the incidence of cataracts increases with radiation dose. Literature was noted to reveal that there was no evidence of cataract formation for any radiation dose less than 200 roentgens regardless of the duration of the treatment. It was reported that if a dose of 750 to 900 roentgens was delivered to the lens in three weeks to two months, there would be about a 60 percent probability that a cataract would develop and about a 5O percent chance that it would be progressive with a corresponding loss of vision. The expert indicated that, in general, fractionation delays the onset of cataracts and results in fewer severe opacities. The expert reiterated that there was no evidence that radiation exposures less than 200 roentgens would produce cataracts. The Veteran's radiation exposure history was explained as 100 millirem per month based on usual duties as an x-ray technician with no shielding of the eyes. The maximum permissible dosage for total body exposure, including the eyes, was noted to be 5 rem per year. The expert indicated that there was nothing in the file that led him to believe that the Ve1teran had a different experience. The medical expert rendered the opinion that it is extremely unlikely that cataract formation can be related to radiation exposure less than 200 rem in the period of exposure under consideration and that there is no evidence that the Veteran's radiation exposure came anywhere near this level. Therefore, it was noted to be extremely unlikely that the Veteran's exposure to radiation is related to his bilateral cataracts.
In September 2008 a private physician reported that it is known that ionizing radiation causes cataracts in a delayed manner in humans. The lag time is extensive because the radiation has a cumulative effect, which is modeled with a dose response relationship. Thus any exposure will increase a person's absolute risk because low doses cause lens damage. The physician stated that patients who are not exposed to human produced ionizing radiation have cataracts at a lower frequency and later in. life than do patients who ate exposed to occupation ionizing radiation. The ]physician rendered the opinion that the Veteran's catarac;ts are due in significant part to his service exposure to ionizing radiation. The physician provided the ra1tione1l1e that the Veteran entered service fit for duty, had exposure to radiation while in service, used several different film badges, and had a co-worker who was overdosed with occupational radiation. The physician continued to indicate that the overdosed co-worker suggests that one or more of the radiation units were unsafely leaking because during routine/safe use no employees would be overdosed. The physician reported that he had been in charge of radiology shops with leaky equipment and that all staff were at risk for over dosages because of the nature of the occupation. It was further explained that radiation badges have known low-level false negative readings and that the badges are not always worn in known safe areas which might not be safe with leaky equipment. It was noted that the fact that the Veteran used different film badges means that different employees could have incorrectly worn the badges. The Veteran's cataracts were noted to be of the type and occured at the appropriate interval following exposure. The physician continued to discuss the opinion provided by the expert in 1976 noting disagreement with the findings.
A Department of the Air Force statement dated in February 2012 addressed the Veteran's radiation exposure. It was noted that the office queried the occupational radiation exposure monitoring records in the USAF Master Radiation Exposure Registry (MRER) for the Veteran and that no additional external or internal radiation exposure data for the Veteran was found. Thus, the Ionizing Radiation Exposure Report dated in July 1975 was noted to be the only known dosimetry record. The total effoctive whole body dose for the Veteran was noted to be 2.133 rem. lt was indicated that while there were some inconsistencies on the report, given that all doses were summed, the recorded dose would be an overestimate of the Veteran's actual exposure. Cataract induction from exposure to ionizing radiation was noted to be a threshold dose several orders of magnitudes higher than any potential dose the Veteran would have received. Literature was noted to reveal that the radiatio1n-induced cataract threshold dose is approximately 200 rem with a latency period that ranges from about two months to 35 years. The Veteran's dosimetry record indicated that he only received about one percent of the threshold dose.
An environmenital health expert in a statement dated in August 2012 reported that the Veteran was diagnosed with bilateral posterior subcapsular cataracts somewhere between 1965 and 1975. A letter from the Air Force dated in July 1975 was noted to reveal that the Veteran had a whole body dose of 2.133 rem. An independent medical opinion stated that the Veteran would be exposed to no more than 100 mrem (0.1 rem) per month performing the duties of a diagnostic radiology technician. Based on 48 months of service the total dose as noted to be 4800 mrem (4.8 rem).
The expert cited to literature indicating that the maximum likelihood dose threshold for Stage I posterior subcapsular cataracts was 35 rad with a 95 percent confidence interval of 19 tci 66 irad. The Veteran's total dose to the lens of the eye of 4.8 rem was noted to be below the lower threshold. The expert stated that the opinion of the private physician dated in September 2008 is in direct contravention with the results of the study. The private physician was noted to infer that any exposure to radiation would have caused the Veteran's cataracts and that he made no mention of the actual dose estimate, and that the dose estimate is likely a high estimate giving the Veteran much benefit of the doubt. The opinion was renderd that it is not likely that the Veteran's bilateral posterior subcapsular cataracts can be attributed to ionizing radiation exposure while in military service.
In June 2013 a VA medical expert, after reviewing the Veteran's claims file stated:
Per chart review I do not find evidence that the patient had radiation induced Cataracts. I agree with the previous expert opinions who did not find evidence of radiation induced cataracts. It is my opinion the cataract is at least as likely as not related to (was incurred during) his active duty service.
The Board finds that entitlement to service connection for residuals of post operative cataract extraction, left eye, and right eye cataract is warranted. Service treatment records reveal that upon examination at separation from service the Veteran was noted to have eye trouble with headaches when working in dark rooms and has worn glasses for six years. Thereafter, the Veteran was diagnosed with cataracts between 1965 and 1975. After review of the claims file, a VA medical expert in June 2013 rendered the opinion that the Veteran's cataract is at least as likely as not related to (was incurred during) his active service. Therefore, as the Veteran has been diagnosed with cataracts and residuals of post operative cataract extraction, left 1eye, and as there is an opinion that the Veteran's cataracts were at least as likely as not incurred in service, affording the Veteran the benefit of the doubt, the claims of entitlement to service connection for residuals of post operative cataract extraction, left eye, and entitlement to service connection for cataract of the right eye are granted.
ORDER
New and material evidence having been received, the claim of entitlement to service connection for cataracts is reopened.
Service connection for residuals of post operative cataract extraction, left eye, is granted.
Service connection for cataract of the right eye is granted.
