Citation Nr: 1115557 Decision Date: 04/20/11 Archive Date: 05/04/11 DOCKET NO. 04-07 666A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for colon cancer, claimed as due to exposure to ionizing radiation. 3. Entitlement to service connection for prostate cancer, claimed as due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1941 to October 1948 and from February 1949 to December 1963. 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. In March 2009, the Board found that new and material evidence had been received to reopen his previously denied claims of entitlement to service connection for colon and prostate cancer. The reopened claims, along with the issue of entitlement to service connection for hypertension, were remanded for additional development. A supplemental statement of the case was issued by the RO in January 2011 which continued the denial of his claims. The case is once again before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2010). FINDINGS OF FACT 1. The competent and credible evidence of record indicates that the Veteran's hypertension is related to his military service. 2. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran's colon cancer is etiologically related to any incident of service, including exposure to ionizing radiation. 3. There has been no demonstration by competent clinical, or competent and credible lay, evidence of record that the Veteran's prostate cancer is etiologically related to any incident of service, including exposure to ionizing radiation. CONCLUSIONS OF LAW 1. The Veteran's hypertension was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). 2. Colon cancer was not incurred in or aggravated by active service, nor may such be presumed. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.311 (2010). 3. Prostate cancer was not incurred in or aggravated by active service, nor may such be presumed. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.311 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Stegall Concerns As alluded to in the Introduction, in March 2009, the Board remanded this case in order to gather additional treatment records and obtain a revised radiation dose estimate. The Remand also requested that any additional development required under 38 C.F.R. § 3.311 be accomplished, and that the RO readjudicate the Veteran's claims. The record reveals that the RO requested the Veteran provide additional information as to the specific years after service during which he received treatment at the Norton Air Force Base (AFB), March AFB and George AFB in April 2009. The Veteran provided such information in a statement received later that month. The record indicates that the RO then attempted to locate and obtain the Veteran's treatment records from these facilities as well as any additional service treatment records that had not yet been associated with his claims folder. In a statement received in July 2009, the Office of the Air Force Surgeon General indicated that the Veteran's post-service treatment records from these AFBs were being stored at the National Personnel Records Center (NPRC). Following a request for records, the NPRC indicated that all of the Veteran's treatment records had already been provided to the RO and that no additional records were available. The revised dose estimate was obtained in September 2010 and, pursuant to 38 C.F.R. § 3.311, additional opinions from the VA Under Secretary for Benefits and the Under Secretary for Health were obtained. The Veteran's claims were then readjudicated in the January 2011 supplemental statement of the case. Thus, the Board's remand instructions have been complied with to the extent possible. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) [although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required]. II. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); 38 C.F.R. § 3.159(b) (2010); 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Veteran's hypertension claim, VCAA notice letters were sent to the Veteran in March 2003, February 2004, and April 2006. The Board need not, however, discuss the sufficiency of these letters or VA's development of the claim in light of the fact that the Board is granting the Veteran's claim. Thus, any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. With respect to the Veteran's colon and prostate cancer claims, prior to the initial adjudication by the RO, VA issued a VCAA notice letter to the Veteran in April 2006. This letter informed the Veteran of what the evidence must show to establish service connection once his claims were reopened. The Veteran was also informed of his and VA's respective duties for obtaining evidence. Finally, the April 2006 letter informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA. The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims. In particular, the record contains the Veteran's service treatment records, service personnel records, VA outpatient medical records, private medical records, multiple lay statements and a medical opinion from the Director of Radiation and Physical Exposures. As the Board will discuss in detail in its analysis below, VA has obtained a medical nexus opinion from the Director of Radiation and Physical Exposures. This report reflects that the physician reviewed the Veteran's past medical history and rendered an appropriate opinion that was consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the medical opinion is adequate for rating purposes. See 38 C.F.R. § 4.2 (2010). As discussed in detail below, the Veteran has contended that he was diagnosed with hypertension in October 1961 and treated at various AFBs following his separation from service. The record reflects that the RO has made multiple attempts to obtain complete copies of the Veteran's service treatment records and any post-service records of treatment from the AFBs described by the Veteran without any success. Following an April 2009 response from the NPRC, the RO made a formal finding that the treatment records described by the Veteran were unavailable. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the United States Court of Appeals for the Federal Circuit elaborated on the VA's responsibility to obtain a veteran's service records. The Board finds, however, that in light of multiple attempts that have been made to locate any additional in-service or post-service treatment records, there is no reasonable possibility that the missing records may be located or recovered, and thus no useful purpose would be served in remanding this matter for more development. In any event, there can be no harm to the Veteran in this regard as his claim for hypertension is being granted. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He exercised the option of a personal hearing and was afforded one in February 2009 as detailed in the Introduction. Thus, the Board will proceed to a decision. III. Hypertension In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2010). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including hypertension, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. § 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2010). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). With respect to the first Shedden element, the record indicates that the Veteran has been diagnosed with hypertension. See, e.g., June 2002 treatment record from the San Antonio Heart Associates. A current disability has therefore been demonstrated. With respect to the second Shedden element, the Board will separately address in-service disease and injury. Concerning in-service disease, the Veteran has testified that he was diagnosed with hypertension in 1961. See the February 2009 hearing transcript, page 3. In a statement received in March 2004, the Veteran reported that he received treatment for hypertension at the Westover 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. As noted above, the RO has attempted to obtain the Veteran's post-service treatment records from these facilities without success. The service treatment records associated with the Veteran's claims folder do not document treatment or a diagnosis of hypertension. In fact, in his August 1963, self-report of medical history, the Veteran indicated that he did not have, or had not ever had, high or low blood pressure. In addition, while post-service treatment records associated with the Veteran's claims folder provide differing accounts as to when the Veteran developed hypertension, these records all indicate that the disability had its onset more than one year after he separated from service. Specifically, in an August 1999 treatment record, it was reported that the Veteran has had hypertension for 30 years, placing the date of onset of this disease in August 1969. In July 1999, however, it was reported that the Veteran's hypertension began 27 years prior, or in 1972. In a June 2002 treatment record, it was recorded that the Veteran developed hypertension 15 years ago, or in 1987. In this case, the Veteran's post-service treatment records are missing through no fault of his own. While the Board acknowledges that the Veteran is competent to report when he was diagnosed with hypertension, in light of the negative separation examination, and the post service treatment records which indicate that his hypertension began many years after service, the Board finds his statements to be not credible. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. Such records are more reliable, in the Board's view, than the Veteran's unsupported assertions made in connection with his claim for monetary benefits from the government. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. An in-service disease has therefore not been demonstrated. Concerning in-service injury, the Veteran's August 1963 separation examination reported that he had worked with radioactive materials since 1950. Moreover, during the February 2009 hearing, the Veteran reported that he was under extreme stress during service due to his responsibilities as the Chief Master Sergeant of the Special Weapons Unit. Id. In this capacity the Board notes that an August 1963 performance report documents that the Veteran was a Nuclear Weapons Superintendent. As a result, the Board finds that his statements of being under extreme stress are credible. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994); see also 38 U.S.C.A. § 1154 (West 2002). An in-service injury has therefore been demonstrated. With respect to the third Shedden element, the Veteran has submitted a nexus statement from R.H.H., M.D., in support of his claim. In this February 2009 statement, Dr. R.H.H. indicated that the Veteran's "job in the military was a nuclear weapons superintendent, a very high stress job. It's likely his job contributed to the onset of his hypertension." The Board notes that there are no other nexus opinions of record. As a result, the third Shedden element has been met. In summary, for the reasons and bases expressed above, the Board has concluded that the evidence supports the Veteran's claim of entitlement to service connection for hypertension. The benefit sought on appeal is accordingly granted. IV. Colon and Prostate Cancer Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can 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 the condition at issue is a radiogenic disease. 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). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or 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)(i), (ii) (2010). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(b)(5) requires that colon cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5) (2010). Under the special development procedures in § 3.311(a), 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) (2010). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii) (2010). The Veteran has contended that his prostate and colon cancers are the result of exposure to ionizing radiation during military service. See, e.g., the February 2009 hearing, page 3. Specifically, he has stated that he was exposed to ionizing radiation while inspecting nuclear weapons in the course of his military duties. Id. The Board will now address the three methods, discussed in detail above, through which service connection based upon radiation exposure may be granted [38 C.F.R. § 3.309(d) and § 3.311, and Combee]. (i.) Presumptive service connection - radiation exposure As noted above, in order to establish presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the Veteran must currently have a disease listed in 38 C.F.R. § 3.309(d)(2), and have been a radiation-exposed veteran who participated in a radiation-risk activity as such terms are defined in the regulation. See 38 C.F.R. § 3.309(d)(3) (2010). While colon cancer is one of the listed diseases under 38 C.F.R. § 3.309(d)(2), the record does not indicate that the Veteran participated in a radiation-risk activity and he does not contend otherwise. Instead, the Veteran argues that he was exposed to radiation while inspecting nuclear missiles. Because the presumptive service connection provisions are not applicable to this case, the Board will next examine the claim under 38 C.F.R. § 3.311, which provides for special development in cases involving radiogenic diseases. (ii) Radiogenic diseases under 38 C.F.R. § 3.311 The provisions of 38 C.F.R. § 3.311 provide for development of claims based on a contention of radiation exposure during active service and post-service development of a radiogenic disease. The provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). Section 3.311 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. The Veteran has been diagnosed with colon and prostate cancer. See, e.g., a private treatment record from October 1997 and a VA treatment record from May 2006. These are two of the radiogenic diseases as defined by 38 C.F.R. § 3.311. Furthermore, the Veteran was diagnosed with these diseases during the prescribed period; five years or more after exposure. See 38 C.F.R. § 3.311(b)(5)(iv) (2010). Based on the presence of a radiogenic disease, a radiation dose estimate was obtained in June 2004, however, in the March 2009 remand, the Board noted that this estimate did not take into consideration the Veteran's period of exposure from 1950 to 1951 and requested that a revised radiation dose estimate be obtained. A second radiation dose estimate was obtained in September 2010 from the Air Force Medical Support Agency. In this assessment, it was determined that, based on the his duties and his potential to be exposed from ionizing radiation beginning in January 1950, the Veteran was exposed to an "estimated maximum total effective dose equivalent (TEDE) . . . of approximately 7.7 rem, and a separate extremity (hands and forearms) exposure estimate of 64.3 rem." In a December 2010 statement, writing for the Under Secretary for Health, V.A.C., M.D., the Director of Radiation and Physical Exposures, reported: The Health Physics Society, in their position statement PS010-1, Radiation Risk in Perspective, revised in August 2004, states that 'in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources.' The position statement goes on to say that 'there is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent.' Based on this study, Dr. V.A.C. indicated that "[s]ince the Veteran's occupational radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it is our opinion that it is unlikely that the Veteran's colon and/or prostate cancer can be attributed to radiation exposure while in military service." While Dr. V.A.C. observed that the Veteran had been provided with an extremity dose of 64.3 rem, it was noted that "[t]his exposure is already considered in the estimation of the TEDE" and, because the issue of cancer of the extremities or skin of the extremities was not before her, Dr. V.A.C. indicated that it was not considered as a separate factor in the opinion. Following this opinion, on December 14, 2010, the Director of VA Compensation and Pension Service reviewed the Veteran's claims folder and determined that "there is no reasonable possibility that the Veteran's colon and prostate cancer can be attributed to radiation exposure while during military service." Thus, the provisions of 38 C.F.R. § 3.311 have been adhered to. In light of the above-mentioned opinions, service connection based on the procedural advantages of 38 C.F.R. § 3.311 is not warranted. (iii.) Direct service connection - Combee The Board is also obligated to consider service connection without reference to the radiation regulations, 38 C.F.R. §§ 3.309(d), 3.311. The Federal Circuit in Combee determined that the regulations governing presumptive service connection for radiation exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. Accordingly, the Board will proceed to evaluate the Veteran's claim under the regulations governing direct service connection. See Combee, 34 F.3d at 1043-1044; see also 38 C.F.R. § 3.303(d) (2010). As has been discussed above, in order to establish service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden, supra. With respect to the first Shedden element, the evidence indicates that the Veteran has been diagnosed with prostate and colon cancer. A current disability has therefore been demonstrated. With respect to the second Shedden element, the Board will separately address in-service injury and disease. Concerning in-service disease, the Veteran's service treatment records do not indicate, and the Veteran does not contend, that he suffered a disease of the colon or prostate during his military service. Concerning in-service injury, as is discussed above, the Veteran was exposed to ionizing radiation during service. No specific prostate or colon injuries, as such, were documented during the Veteran's military service. Nevertheless, based on the Veteran's exposure to ionizing radiation, the second Shedden element has been satisfied. With respect to the third Shedden element, as noted above, Dr. V.A.C. determined that the Veteran's prostate and colon cancers were not related to the radiation exposure that he experienced during service. Similarly, the director of VA's Compensation and Pension service determined that "there is no reasonable possibility that the Veteran's colon and prostate cancer can be attributed to radiation exposure while during military service." In support of his claim, the Veteran submitted a May 2009 statement from W.T.P., M.D., who indicated that "it is entirely possible that the exposure to nuclear materials" the Veteran experienced during service could "have contributed to the cancers which he has developed." Dr. W.T.P., did not, however, provide any rationale for this opinion or indicate how the Veteran's cancers were related to his in-service radiation exposure. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."] The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993), and Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, the Board places greater weight of probative value on the opinion of Dr. V.A.C., who provided a detailed explanation for her opinion based on sound medical principles and the Veteran's radiation dose estimate. Based on the lack of any supporting rationale for his April 2009 opinion, the Board assigns minimal probative weight to Dr. W.T.P.'s opinion. To the extent that the Veteran and his representative contend that a relationship exists between his prostate and colon cancers and his military service, any such statements offered in support of the Veteran's claim do not constitute competent evidence and cannot be accepted by the Board. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. The Board is cognizant that lay evidence may be sufficient to establish a nexus in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the question of whether the Veteran's diagnosed cancers are related to his in-service radiation exposure is a complex medical issue. In this case there is no evidence that the Veteran, or his representative, have the necessary medical training or experience to comment on such a matter. The Board therefore assigns little probative value to their statements. Accordingly, the third Shedden element has not been met, and the Veteran's claims fail on this basis. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of evidence is against the Veteran's claims of entitlement to service connection for prostate and colon cancers, as the third Shedden element has not been met. The benefits sought on appeal are accordingly denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for colon cancer, claimed as due to exposure to ionizing radiation, is denied. Entitlement to service connection for prostate cancer, claimed as due to exposure to ionizing radiation, is denied. ____________________________________________ MARK W. GREENSTREET Chief Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs