Citation Nr: 0910423 Decision Date: 03/20/09 Archive Date: 03/26/09 DOCKET NO. 04-07 666A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for colon cancer, claimed due to exposure to ionizing radiation. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer, claimed due to exposure to ionizing radiation. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION Please note this appeal has been advanced on the docket of the Board of Veterans' Appeals (Board) pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). This matter comes to the Board on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a June 2003 rating decision the RO, in pertinent part, denied service connection for hypertension. In addition, in an August 2006 rating decision the RO determined that new and material evidence had been received to reopen previously denied claims of service connection for colon and prostate cancers, both claimed due to exposure to ionizing radiation, and in the rating decision the RO denied the service connection claims on their merits. The Veteran's disagreement with the denial of service connection for hypertension, colon cancer, and prostate cancer led to this appeal. The Veteran testified at a Board hearing held at VA offices in San Antonio, Texas, in February 2009. The issues of entitlement to service connection for colon cancer and prostate cancer, both claimed due to exposure to ionizing radiation, and the claim of entitlement to service connection for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed rating decision dated in December 2003, the RO denied service connection for colon cancer and prostate cancer, both claimed due to exposure to ionizing radiation; the claims were denied on the basis that there was no evidence that the Veteran was exposed to dangerous levels of ionizing radiation in service. 2. Evidence associated with the claims file subsequent to the December 2003 RO decision includes evidence that relates to an unestablished fact necessary to substantiate the claims, is not cumulative or redundant previously of record, and is sufficient to raise a reasonable possibility of substantiating the claims for service connection to colon cancer and prostate cancer. CONCLUSIONS OF LAW 1. The December 2003 RO decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2008). 2. New and material evidence has been received to reopen the claims of entitlement to service connection for colon cancer and prostate cancer. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initial matters The Veteran is seeking service connection for colon cancer and prostate cancer, both of which he contends are related to service because of exposure to ionizing radiation in the course of his work with nuclear weapons. The Board will discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. The Board acknowledges that VA has duties related to notice and assistance to a claimant in the development of a claim as mandated under the provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008) and 38 C.F.R. § 3.159 (2008). In this case, to the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the appeal as to service connection for colon cancer and prostate cancer given the favorable nature of the Board's decision regarding reopening these claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Legal criteria Service connection-in general In general, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2008). Service incurrence of certain chronic diseases, including malignant tumors, may be presumed if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2008). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a condition that is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways, which have been outlined by the United States Court of Appeals for Veterans Claims (Court). See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Ruker v. Brown, 10 Vet. App. 67, 71 (1997). First, where it is contended that disease developed as a result of exposure to ionizing radiation during service, service incurrence may be presumed under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) for veterans who participated in defined radiation risk activities and have certain diseases. Second, service connection may be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311 if certain conditions are met. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative 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); 38 C.F.R. § 3.102 (2008). Finality/new and material evidence Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.200, 20.302, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Evidence presented since the last final denial will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Regarding petitions to reopen, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). For the purpose of establishing whether new and material evidence has been submitted, the added evidence is presumed credible unless is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992); see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Background and analysis Although the RO reopened the previously denied claims of service connection for colon cancer and prostate cancer and adjudicated the claims on their merits, the Board must first examine whether the evidence warrants reopening of the claims. This is significant because the preliminary question of whether a previously denied claim may be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying service connection claim on its merits. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In a rating decision dated in December 2003, the RO denied service connection for colon cancer and prostate cancer, both claimed due to exposure to ionizing radiation. The RO notified the Veteran of its decision and informed him of his appellate rights, but he did not file a notice of disagreement with the denial of either claim, and the decision denying the claims became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. In its December 2003 rating decision, the RO denied service connection for colon cancer and prostate cancer, both claimed due to exposure to ionizing radiation, stating there was no evidence that he was exposed to dangerous levels of radiation and his service treatment records contain no evidence that colon cancer or prostate cancer was diagnosed in service. Evidence of record at the time of the unappealed December 2003 rating decision that denied service connection for colon cancer and prostate cancer included service dental records and service treatment records, none of which refer to colon or prostate complaints or findings. Also of record was a report of hospitalization pertaining to a bilateral spermatocelectomy at the U.S. Naval Hospital in San Diego, California, in November 1964. Other medical records included pathology reports from private physicians showing that in October 1997 the Veteran was diagnosed as having colon cancer and that in January 2003 he was diagnosed as having prostate cancer. Other evidence of record included WD AGO Form 53-55, Enlisted Record and Report of Separation, for the Veteran's service from November 1941 to November 1945, which lists his Military Occupational Specialty (MOS) as airplane and engine mechanic. A WD AGO Form 53, Enlisted Record and Report of Separation, for the Veteran's service from November 1945 to October 1948 lists his MOS as "A P Maint Tech." The record also included DD Forms 214 for the Veteran's remaining service through retirement in December 1963, and specialties or listed related civilian occupations included airplane maintenance technician, munitions supervisor, and nuclear weapons mech superintendant. Also of record was an August 2003 request from the RO to the National Personnel Records Center (NPRC) for a DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, and other records of exposure to radiation for the Veteran. The August 2003 response from NPRC was that the document or information requested is not a matter of record. Since the December 2003 rating decision, additional evidence has been received. That evidence includes additional dental records dated in 1942 and 1949 and service treatment records dated in 1951 and 1954, none of which refers to complaints or findings related to the colon or the prostate gland. Also added to the record, was the Veteran's AF Form 7, Airman Military Record, which includes a chronological listing of service with duty titles and organizations and stations of assignment. The Veteran also submitted a copy of the AF Form 7 along with a letter from the Commanding Officer, Headquarters 8th Aviation Field Depot Squadron dated in June 1952 requesting permission to promote the Veteran. In the letter, the Commanding Officer stated the Veteran's primary Air Force Specialty was Aircraft Maintenance Technician, Code Number 43171. He also stated the Veteran's duty Air Force Specialty was Weapons Mechanical Technician, Code Number 33270, which was an assignment the Veteran had performed for 30 months. The Veteran also submitted a photocopy of what appear to be an undated carbon copy of a document titled Nomination for Consideration of The Outstanding Airman of the Year. It nominates the Veteran and outlines the Veteran's military experience including assignment as student and nuclear weapons technician from December 1949 to July 1950 and subsequent assignments from July 1950 onward including NCOIC (Non-Commissioned Officer in Charge) of Nuclear Weapons Maintenance, NCOIC of the Armament-Electronics Branch, NCOIC of Munitions Maintenance, and Munitions Superintendent at various commands. Other evidence added to the record includes a May 2007 memorandum from the Chief, Nuclear Weapons Safety Branch, Headquarters Air Force Safety Center, which states it confirmed the Veteran had exposure to ionizing radiation from nuclear weapons maintenance duties. In the memorandum, the Nuclear Weapons Safety Branch stated that the estimated maximum whole-body deep dose-equivalent was 6.4 rem with an exposure estimate of 51 rem for the hands and forearms. This was repeated in a June 2007 letter from the Office of the Surgeon General of the Air Force. In a September 2008 memorandum to the Director of the VA Compensation and Pension Service, the VA Chief Public Health and Environmental Hazards Officer provided a medical opinion regarding the relationship of the reported maximum whole-body radiation dose estimate to the Veteran's colon cancer and his prostate cancer. The transcript of the Veteran's February 2006 hearing testimony has also been added to the record. It includes his description of specific activities related to maintaining and assembling nuclear weapons. He testified this involved handling capsules containing nuclear components, which he did without any protection from radiation. In addition, he testified that he went into special weapons work in 1949. He testified that the nuclear and thermonuclear weapons he handled included the Mk-5 and Mk-28 strategic nuclear bombs. The Board finds that the added evidence is new and material with respect the service connection for colon cancer and prostate cancer, claimed due to exposure to ionizing radiation. This is because the added evidence relates to an unestablished fact necessary to substantiate the claim, and it is neither cumulative nor redundant of evidence already of record. The Board accepts the added evidence as credible because the Veteran is competent to testify as to whether he wore protective gear and the Air Force Safety Center is competent to prepare radiation dose estimates. The added evidence provides previously absent evidence of quantitative data related to exposure to ionizing radiation in service and thereby raises a reasonable possibility of substantiating the claims that the Veteran's colon cancer and prostate cancer are due to radiation exposure in service. Because the evidence is both new and material, the claims for service connection for colon cancer and prostate cancer may be, and are, reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for colon cancer, claimed due to exposure to ionizing radiation, is reopened, and the appeal is allowed to that extent only. New and material evidence having been received, the claim of entitlement to service connection for prostate cancer, claimed due to exposure to ionizing radiation, is reopened, and the appeal is allowed to that extent only. REMAND As noted above, new and material evidence has been received to reopen the claims for service connection for colon cancer and prostate cancer, both claimed due to exposure to ionizing radiation. Prior to adjudication of the merits of the claims, it is the judgment of the Board that further development is needed. The record shows that in accordance with 38 C.F.R. § 3.311 the RO obtained a radiation dose estimate for the Veteran. The RO properly submitted the dose estimate to the Compensation and Pension Service Director who requested a medical opinion from the Under Secretary for Health, who responded via the Chief Public Health and Environmental Hazards Officer. On review of the record, the Board observes that the RO, in its January 2007 request to the Radiation Protection Division of the Office of the Surgeon General of the Air Force for a radiation dose estimate, relayed information from the Veteran to the effect that between January 1950 and December 1963 he performed inspections, cleaning, and insertion of atomic and nuclear/thermo-nuclear weapons two to three times a week for the duration of those 13 years with the period of highest concentrated exposure between 1954 and 1959. In a March 2007 letter to the RO, the Chief, Radiation Protection Division and USAF Radioisotope Committee Secretariat of the Office of the Surgeon General stated it had queried the USAF Master Radiation Exposure Registry for the Veteran for records of occupational radiation exposure monitoring and had found no external or internal exposure data for the Veteran. The Surgeon General's office further stated that it had sent an inquiry to the Air Force Safety Center for any information they have on the Veteran's radiation exposure. The record includes the response from the Chief, Nuclear Weapons Safety Branch, Headquarters Air Force Safety Center to the Office of the Surgeon General. In its May 2007 letter, the Nuclear Weapons Safety Branch Chief said that his staff procured and reviewed official personnel records for the Veteran from NPRC and from those records confirmed that the Veteran had exposure to ionizing radiation from nuclear weapons maintenance duties. The letter said that in summary, the Veteran's estimated maximum whole-body deep dose- equivalent is 6.4 rem. It was further stated that because one duty location where the Veteran served had the potential for unsealed weapon systems, a separate extremity (hands and forearms) exposure estimate of 51 rem was provided. The letter said that overall, these dose estimates are based on the Veteran's duties form 1951 - 1963, as the Veteran performed aircraft mechanic duties during previous enlistment periods. The Board acknowledges that the Veteran's AF Form 7, Airman Military Record, and his DD Form 214 for the period from February 1949 to February 1951 list the Veteran's specialty as Aircraft Maintenance Technician. There is however, additional evidence that corroborates the Veteran's assertions that his potential for exposure to ionizing radiation started in January 1950. In this regard, the Nomination for Consideration for the Outstanding Airman of the Year lists the Veteran's military experience as including student and nuclear weapons technician, Sandia Base, New Mexico, from December 1949 to July 1950 and NCOIC of Nuclear Weapons Maintenance, 555th Aviation Depot Squadron, England, from July 1950 to December 1950. Further, this is consistent with the June 1952 Request for Permission to Promote memorandum in which the Veteran's commanding officer stated that the Veteran's Specialty was Aircraft Maintenance Technician, Code Number 43171 but that his duty Air Force Specialty was Weapons Mechanical Technician, Code Number 33270, an assignment he had performed for 30 months. The Board notes the Veteran's DD Form 214 for service between February 1949 and February 1951 shows the Veteran had a three-week AFSWP training in January 1950, and this is consistent with his AF Form 7, which shows he completed a Special Weapons Course (33270) in 1950. In view of this additional evidence, which the Board accepts as credible, and which was not considered by the Nuclear Weapons Safety Branch, Headquarters Air Force Safety Center, in its preparation of a radiation dose estimate for the Veteran, it is the judgment of the Board that the Veteran's case should be returned to the Nuclear Weapons Safety Branch, via the Office of the Surgeon General, for a revised radiation dose estimate that includes consideration of the Veteran's activities during 1950 as stated above. After obtaining the requested revised radiation dose estimate, development should be completed pursuant to the provisions of 38 C.F.R. § 3.311 followed by readjudication of the claims for service connection for colon cancer and prostate cancer. As to the claim for service connection for hypertension, the Veteran has stated repeatedly that he first received treatment of hypertension at Westover Air Force Base (AFB) in Massachusetts in October 1961 and that in the years after retirement from service in December 1963 and prior to the base closures he received treatment at Norton AFB, March AFB, and George AFB, all in California. He estimated that he started receiving treatment at Norton AFB in January 1964, later received treatment at March AFB, and started receiving treatment at George AFB in June 1984. The record shows the RO requested that NPRC provide active duty inpatient clinical records for the Veteran for treatment of hypertension at Westover Hospital, Massachusetts. There is no record of the response from NPRC in the claims file, but, in any event, the Veteran has not alleged that he was ever hospitalized in service for treatment of hypertension. Action should be taken to request any additional service treatment records that may exist, to include records for that portion of the Veteran's active duty service from October 1961 to December 1963. In response to the Veteran's statements that he received treatment for hypertension at Norton AFB starting in January 1964 and later received treatment at March AFB and George AFB, the record shows the RO obtained information from the Internet about planned base closures at Norton AFB and March AFB. Thereafter, the RO told the Veteran in an April 2006 letter that it had tried to obtain the addresses for Norton AFB and March AFB but had not had any luck as both bases are now closed. Additional development is warranted in this regard as VA is obliged to assist the Veteran in obtaining records from Federal agencies. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran should be requested to provide more specific information as to the years during which he received treatment for hypertension at Norton AFB, March AFB, and George AFB. Action should be taken to determine the disposition of treatment records from the medical facilities at Norton AFB, March AFB, and George AFB, and appropriate action should be taken to attempt to obtain any records for the Veteran pertaining to the treatment of hypertension. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) 1. Attempt to obtain and associate with the claims file any additional service treatment records that may exist for the Veteran, to include records for that portion of the Veteran's active duty service from October 1961 to December 1963. 2. Request that the Veteran provide more specific information, if possible, as to the specific years after service during which he received treatment for hypertension at Norton AFB, March AFB, and George AFB. 3. Determine the disposition of treatment records from the medical facilities at Norton AFB, March AFB, and George AFB after base closures. Then, attempt to obtain any records for the Veteran pertaining to the treatment of hypertension at each of these medical facilities, to include, but not limited to, during 1964 at Norton AFB. This process should be documented fully in the claims file. 4. Via the Radiation Protection Division and USAF Radioisotope Committee Secretariat of the Office of the Surgeon General of the Air Force, contact the Nuclear Weapons Safety Branch of the Air Force Safety Center and request a revised radiation dose estimate for the Veteran, with particular attention to exposure during 1950. It should be explained that although the Veteran's AF Form 7, Airman Military Record, and his DD Form 214 for the period from February 1949 to February 1951 list the Veteran's specialty as Aircraft Maintenance Technician, there is evidence that corroborates the Veteran's assertions that his potential for exposure to ionizing radiation started in January 1950. In this regard, the Nomination for Consideration for the Outstanding Airman of the Year lists the Veteran's military experience as including student and nuclear weapons technician, Sandia Base, New Mexico, from December 1949 to July 1950 and NCOIC of Nuclear Weapons Maintenance, 555th Aviation Depot Squadron, England, from July 1950 to December 1950. (In this regard, the Veteran's DD Form 214 for service between February 1949 and February 1951 shows the Veteran had a three-week AFSWP training in January 1950, and his AF Form 7 shows he completed a Special Weapons Course (33270) in 1950.) With the request for the revised dose estimate, include a copy of the Nomination for Consideration for the Outstanding Airman of the Year and a copy the June 1952 Request for Permission to Promote, which states that as of that date that although the Veteran's primary Air Force Specialty was Aircraft Maintenance Technician, code Number 43171, his duty Air Force Specialty was Weapons Mechanical Technician, Code Number 33270, which assignment he had performed for 30 months. 5. After obtaining the requested revised radiation dose estimate, development should be completed pursuant to the provisions of 38 C.F.R. § 3.311 for the claims for service connection for colon cancer and prostate cancer. 6. Then, after completion of any other development indicated by the state of the record, readjudicate entitlement to service connection for hypertension and readjudicate the claims of entitlement to service connection for colon cancer and prostate cancer, both claimed due to exposure to ionizing radiation. If any benefit sought on appeal remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs