Citation Nr: 1200499 Decision Date: 01/06/12 Archive Date: 01/13/12 DOCKET NO. 03-19 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for post-operative residuals of breast cancer, including bilateral mastectomies, due to radiation exposure. REPRESENTATION Appellant represented by: Robert W. Legg, Esquire ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran had active military service from May 1985 to June 1990. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the claim sought. In a June 2004 decision, the Board denied the Veteran's claim for service connection. The Veteran, in turn, filed a Motion for Reconsideration in July 2007, which the Board granted in January 2008. In a second decision issued in May 2008 by an expanded panel of the Board, as provided by 38 U.S.C.A. § 7103(b) (West 2002), the Board, again, denied the claim for service connection. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2009, the Court granted the parties' Joint Motion for Vacatur and Remand, vacating the Board's decision as to the issue of service connection for post-operative residuals of breast cancer, including bilateral mastectomies, due to radiation exposure, and remanding the claim to the Board for further proceedings consistent with the Joint Motion. In March 2010, the Veteran's attorney submitted a written statement from the Veteran and an opinion of a private certified health physicist (CHP) directly for the Board's consideration. In April 2010, the Board remanded this matter for further development. In December 2010, an additional opinion was obtained from the Director, Radiation and Physical Exposures. In April 2011, the Veteran's attorney submitted a March 2011 report from G. Kane, M.D., in support of the Veteran's claim. The Veteran's attorney waived initial RO consideration for both his argument and the medical report. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2011). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The competent medical opinions, on the question of whether the Veteran's current post-operative residuals of breast cancer, including bilateral mastectomies, are etiologically related to in-service radiation exposure, are in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for post-operative residuals of breast cancer, including bilateral mastectomies, are met. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). In this case, the Board is granting in full the benefit 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. Legal Criteria Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Service connection for a disability based upon exposure to ionizing radiation can be awarded on three different legal bases. The first basis is a presumptive basis for diseases specific to radiation exposed veterans under 38 C.F.R. § 3.309(d). The second basis is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease under 38 C.F.R. § 3.311. Finally, a veteran is entitled to service connection if he or she can establish that a disability warrants service connection as defined by the general laws and regulations governing VA compensation entitlement, that is on a direct or presumptive basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). VA regulations specify 21 types of cancer that warrant presumptive service connection if they become manifest in a "radiation-exposed veteran" within specified periods of time. A "radiation-exposed veteran" is someone who participated in a "radiation-risk activity." 38 C.F.R. § 3.309(d)(3)(ii)(B). The term "radiation-risk activity" has been specifically defined as: (1) onsite participation in a test involving the atmospheric detonation of a nuclear device; (2) the occupation of Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946; (3) internment as a prisoner of war of Japan during World War II resulting in an opportunity for exposure to radiation comparable to those occupying Hiroshima or Nagasaki; and (4) certain service on the grounds of a gaseous diffusion plant in Paducah, Kentucky, Portsmouth, Ohio, or at area K25 at Oak Ridge, Tennessee; or certain service on Amchitka Island, Alaska. See 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). In this case, the Veteran does not qualify as a "radiation-exposed veteran" as defined under 38 C.F.R. § 3.309(d)(3). Service connection can also be pursued under 38 C.F.R. § 3.311 on the basis of exposure to ionizing radiation and the subsequent development of a radiogenic disease. 38 C.F.R. § 3.311. For a claimant to fall initially within the purview of § 3.311, he or she must satisfy four criteria: (1) The presence of a radiogenic disease must be established; (2) the person to whom the regulation is to apply must have had service; (3) the radiogenic disease must not have been one covered as presumptively service connected under § 3.307 and § 3.309 (otherwise the claimant would be entitled to presumptive service connection) and must have been manifested within the applicable presumptive period under § 3.311(b)(5); and (4) the claimant must contend that the radiogenic disease was the result of exposure to ionizing radiation in service. Essentially, any form of cancer is considered a radiogenic disease within the meaning of the applicable regulations; breast cancer is specifically enumerated as being a radiogenic disease. 38 C.F.R. § 3.311(b)(2). When there is evidence that a veteran has a radiogenic disease, 38 C.F.R. § 3.311 sets out specific requirements for the development of evidence. The regulations require that the RO obtain radiation dose data from the Department of Defense and refer the claim to the VA Under Secretary for Benefits. 38 C.F.R. § 3.311(a)(2), (b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. The Secretary shall consider all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran claims entitlement to service connection for post-operative residuals of breast cancer, including bilateral mastectomies, due to radiation exposure. During service, the Veteran's military occupational specialty was a dental technician. She alleges that regular exposure to radiation from dental x-rays, without the benefit of lead-lined protective equipment, caused her breast cancer. In this case, there is no evidence suggesting a diagnosis of the claimed disability during service. After service, the Veteran was diagnosed with infiltrating ductal carcinoma of the right breast in September 2001. The next month, the Veteran underwent a bilateral mastectomy and began chemotherapy. The evidence suggesting a correlation between the Veteran's breast cancer and radiation exposure during service as a dental technician includes opinions by several physicians and a nurse practitioner. In August 2002, a nurse practitioner from the VA Women's Health Clinic submitted a letter on the Veteran's behalf, noting that she believed that the Veteran's breast cancer "could as likely as not have been caused by exposure to radiation while performing her duties as a Dental Technician." In August 2002, the Veteran was provided with a VA opinion from a physician in response to her claim. The physician reviewed the Veteran's claims file, noting that he believed that the risk of developing breast cancer as a result of common diagnostic procedures was minimal. He also noted that radiology technologists, including dental technicians, did not have an increased incidence of breast cancer. He cited an August 1995 article that appeared in the Journal of the American Medical Association, entitled Breast Cancer Among Radiologic Technologists. In September 2002, the Veteran's private treating physician submitted a letter, which stated that although the cause of the Veteran's breast cancer was unknown, he felt that it was as likely as not that her exposure to radiation while serving as a dental technician "could have resulted in her breast cancer." In January 2003, the VA physician who provided the August 2002 medical opinion again stated that the risk of developing breast cancer as a result of common radiologic procedures was minimal. The Director of Compensation and Pension Services sought a radiation review from the Under Secretary of Health in May 2003 under 38 C.F.R. § 3.311. That month, the Chief of Public Health and Environmental Hazards Officer, a medical doctor, wrote to the Director of Compensation and Pension Services indicating that, based on a report from the Naval Dosimetry Center, it was estimated that the Veteran was exposed to a dose of ionizing radiation of 0.041 rem during service, based on a period from August 1988 to February 1990. The physician further asserted that exposure to 20.62 rads or less at age 21 provided a 99 percent certainty that there was no reasonable possibility that it was as likely as not that the Veteran's breast cancer was related to exposure to ionizing radiation in service. The physician explained that the female breast was considered to have high relative susceptibility to radiation-induced cancer. Finally, the physician stated that many studies of group exposure to doses of less than 20 rads did not show an increased risk of breast cancer. The physician concluded that it was unlikely that the Veteran's breast cancer was attributable to exposure to ionizing radiation during service. Also in May 2003, the Director of Compensation and Pension Service wrote a memorandum entitled, Advisory Opinion - Radiation Review Under 38 C.F.R. § 3.311. The memorandum stated that the Veteran was first exposed to ionizing radiation at the age of 21 and was diagnosed approximately 16 years thereafter. The Memorandum indicated that, based on the report of the Naval Dosimetry Center and the May 2003 report of the Chief of Public Health and Environmental Hazards Officer, the Under Secretary for Health advised that it was unlikely that the Veteran's breast cancer was related to exposure to ionizing radiation in service. In March 2010, the Veteran's attorney submitted a private dose estimate from a CHP. The CHP estimated that the Veteran's reconstructed external dose to the breast tissue would likely be over 400 millirem, which represented a much higher estimate than the official dose of record reported by the Navy. He also noted that depending on the frequency that certain practices occurred such as holding films in place for patients, the lack of lead apron use, and the designs of the equipment and facilities, even higher doses were plausible. In May 2010, the RO requested a newly reconstructed radiation dose estimate for the Veteran. As previously noted, the Naval Dosimetry Center reported a probable dose estimate for the Veteran of 0.041 rem based upon exposure from August 1988 to February 1990. The Veteran, however, asserted exposure from August 1985 to June 1990 while working as a dental technician; thus, a new estimate was required. In a June 2010 response, a representative from the Department of the Navy noted that in order to construct a dose estimate for the Veteran, a CHP would require information about the x-ray unit (make and model), the number of studies conducted per day, the exposure techniques used, and the distance between the patient and operator. In the absence of that data, a specific dose data could not be provided. The representative further mentioned that in June 2003, Navy policy was revised to no longer require the monitoring of dental personnel for radiation exposure. This policy change was based upon a review of historic radiation exposure data for dental personnel. The data revealed zero to a few millirem of radiation exposure to dental personnel per year. The Dosimetry Center indicated that the Federal limit for occupational exposure to ionizing radiation during the Veteran's term of service was 5.0 rem per year. Since the Veteran claimed to have been exposed each year during her five-year enlistment, her allowed Federal exposure could have been up to 25.0 rem. Her documented exposure of 0.041 rem was less than 1 percent of the allowed radiation exposure for one year and less than 0.2 percent of the allowed radiation exposure for five years. It was indicated that the Navy had never had any dental personnel exceed the federal dose limit. The representative also noted that the Navy Radiological Systems Performance Program required that commands have a qualified radiological surveyor evaluate radiographic equipment within thirty days of installation and periodically thereafter. It was noted that the Veteran stated that the equipment was old and outdated; however, this did not mean that the equipment was not properly maintained or surveyed per instructions in place during that time period. It was indicated that based upon the above information it was highly unlikely that the Veteran exceeded any occupational radiation exposure limits. In a December 2010 letter, the Director of Radiation and Physical Exposures indicated that the Veteran's occupational exposure to ionizing radiation was not documented on DD Form 1141, Record of Occupational Exposure to Ionizing Radiation. She observed that a letter from the Naval Dosimetry Center, dated April 14, 2003, indicated that the Veteran's occupational exposure was 0.041 deep dose equivalent photon during time in service (from 1985 to 1990). She noted that in 2001, the Veteran was diagnosed with breast cancer, and she contended that radiation exposure during military service was the cause of the cancer. The Director further observed that in March 2010, the private CHP opined that the Veteran's dose to breast tissue may be over 400 millirem (0.4 rem) and even higher dose may be plausible. She noted that although the dose calculated by the private CHP was approximately 10 times the dose indicated by Navy records, she would consider his dose to be accurate. The Director observed that the Health Physics Society, in their position statement PS010-1, Radiation Risk in Perspective, revised in August 2004, stated 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 went on to say that "there is substantial and convincing scientific health risks following high dose exposure; 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." The Director stated that since the Veteran's occupational radiation dose did not exceed 5 rem in one year or 10 rem in a lifetime, it was unlikely that the Veteran's breast cancer was attributed to radiation exposure while in the military. In a December 2010 report, the Director of Compensation and Pension noted the December 2010 findings of the Director of Radiation and Physical Exposures. It also observed that the Veteran was 21 years old when occupationally exposed to ionizing radiation and that she had post-service employment as a loan officer for VA. The Veteran was noted to have denied tobacco use and exposure to known carcinogens before and after service. It was further observed that family history was positive for breast cancer in three aunts. The Director of Compensation and Pension indicated that as a result of the December 2010 opinion from the Director of Radiation and Physical Exposures, it was his opinion that there was no reasonable possibility that the Veteran's breast cancer could be attributed to exposure to ionizing radiation during service. In March 2011, the Veteran's attorney submitted a March 2011 opinion/letter prepared by G. Kane, M.D. Dr. Kane indicated that it was his opinion that it was more likely than not that the Veteran's breast cancer was caused by X-ray radiation exposure related to her in-service work as a dental technician. In rendering his opinion, Dr. Kane provided in-depth detail and addressed the previous opinions on record. He further noted that more recent research confirmed a positive association between radiologic technologists' x-ray exposure and cancer. He noted that the Veteran was exposed to levels of radiation beyond Navy standards, after which she developed breast cancer. He stated that breast cancer was a scientifically proven consequence of x-ray exposure like that caused by the Veteran's in-service employment. He indicated that her cancer was not caused by genetic abnormalities or other identified factors. As a result, it was his opinion that the Veteran's breast cancer was caused by her in-service x-ray exposure. Here, the Board notes that there are several conflicting medical opinions of record. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the medical opinions of record are probative, as they are all supported by rationale, including some with medical treatises and articles. The Board, however, notes that the August 2002 opinion from the Veteran's treating nurse practitioner and the September 2002 opinion from the Veteran's private physician are speculative as both noted that in-service radiation exposure "could" have resulted in the Veteran's breast cancer. The United States Court of Appeals for Veterans Claims has held that where a physician is unable to provide a definite causal connection, the opinion on that issue constitutes "what may be characterized as 'non-evidence.'" See Perman v. Brown, 5 Vet. App. 237, 241 (1993). See also Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not," and is too speculative to establish medical nexus); see also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992) ("may or may not" language by physician is too speculative). Nevertheless, the record contains several other probative opinions on point. Considering the remaining opinions of record, the Board finds that the competent medical opinion evidence on the question of whether there exists a medical nexus between the Veteran's breast cancer and her service is, at the very least, in relative equipoise. Although the Director of Compensation and Pension and the Director of Radiation and Physical Exposures provided very competent opinions, supported by fully-reasoned rationale, the Board finds that Dr. Kane also provided a competent opinion, with detailed rationale and consideration of recent research pertaining to radiologic technologists' x-ray exposure and cancer. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Given the facts noted above, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for post-operative residuals of breast cancer, including bilateral mastectomies, are met. (CONTINUED ON THE NEXT PAGE) ORDER Entitlement to service connection for post-operative residuals of breast cancer, including bilateral mastectomies, due to radiation exposure, is granted. ___________________________ ___________________________ Keith W. Allen K. Osborne Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs