Citation Nr: 1450421 Decision Date: 11/13/14 Archive Date: 11/26/14 DOCKET NO. 08-23 136A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for multiple myeloma, including as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Robert Legg, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to February 1979. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, but came to the Board from the RO in Cleveland, Ohio. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in July 2009. The Board denied the Veteran's claim in a June 2010 decision. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2012 Memorandum Decision, the Court vacated the Board's decision and remanded the claim for additional development. In accordance with the Court's instructions, the Board remanded this appeal to the RO in October 2012 for additional development and it has been returned to the Board for further review. This appeal was processed using the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of the appellant's case should be applied to those electronic records. Review of the documents in the Veteran's Virtual VA electronic claims file reveals no additional records relevant to the issue on appeal. FINDING OF FACT The Veteran currently has multiple myeloma, and evidence indicates that it was as likely as not a result of in-service radiation exposure. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for multiple myeloma, including as a result of exposure to ionizing radiation, are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.311 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Board considered the regulations pertaining to VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken herein, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim is required at this time. The Veteran contends that he developed multiple myeloma as a result of his exposure to ionizing radiation while in the Navy. It is undisputed that the Veteran has multiple myeloma and that he was exposed to ionizing radiation during his service. The disputed facts are the level of exposure and the probability that said exposure caused or contributed to his condition. Service connection may be granted for a disability resulting from a disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). When a Veteran has been exposed to ionizing radiation during service and develops a "radiogenic disease" as defined in 38. C.F.R. § 3.311(b)(2), which includes multiple myeloma, certain procedural advantages set forth in 38 C.F.R. § 3.311(c) apply. This regulation requires VA to refer the claim to the Under Secretary for Benefits for consideration, which may include obtaining an advisory opinion from the Under Secretary for Health. If the Under Secretary for Benefits is convinced that sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran's disease resulted from exposure to radiation in service, then the Under Secretary for Benefits shall inform the RO of this. The Under Secretary for Benefits must also inform the RO if determining that the opposite is true. 38 C.F.R. § 3.311(b), (c). If necessary to reconcile a material difference between a radiation dose estimate derived from military records and a private dose estimate, VA must refer the issue to an independent expert to resolve the discrepancy. 38 C.F.R. § 3.311(a)(3). Factors to be considered in determining whether a disease resulted from exposure to ionizing radiation include: (1) the probable dose, in terms of dose type, rate, and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies involved in its estimation; (2) the relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology; (3) the Veteran's gender and pertinent family history; (4) the Veteran's age at the time of exposure; (5) the time-lapse between exposure and the onset of the disease; and (6) the extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease. 38 C.F.R. § 3.311(e). In its March 2012 remand, the Court found that there was no evidence that the computer program on which the Chief Public Health and Environmental Hazards Officer, acting on behalf of the Under Secretary for Health, relied heavily in determining the probability that the Veteran's radiation exposure could have caused his multiple myeloma actually took all of the factors in 38 C.F.R. § 3.311(e) into account. The Court remanded the case to seek a more complete rationale for the Under Secretary for Benefits' conclusion that there was no reasonable probability of causation. In September 2012, the Veteran submitted a private opinion from a Certified Health Physicist, S.M. S.M. indicated that he had reviewed "over 800 pages of information" pertaining to the Veteran's claim and has "extensive experience in the area of dose reconstructions for occupationally exposed persons." S.M. explained that, because the badges the Veteran wore to monitor his radiation exposure had a minimum threshold for detection, any individual doses lower than that threshold would not have been counted toward the overall exposure total on the Veteran's Record of Occupational Exposure to Ionizing Radiation. In addition, S.M. noted that the Veteran had often worn badges that registered gamma radiation but not neutron radiation. For these reasons, S.M. found that the Veteran's overall radiation dose "would likely equal or exceed several rem, which is many times higher than the official dose of record reported by the Navy." Based on this new information, when the Board remanded the case to the RO pursuant to the Court's remand, it added an instruction to refer the competing dose estimates to an "independent expert selected by the Director of the National Institutes of Health" in accordance with 38 C.F.R. § 3.311(a)(3). The Veteran has also submitted a medical opinion from Dr. G.K., who indicated that he had reviewed "the record before the agency" in the Veteran's case. Dr. G.K. explained that the computer program on which the Under Secretary for Health relied measures the probability that someone who has been exposed to a certain level of radiation will develop a specific cancer and that the question presented in this case is whether someone who has been exposed and has a specific cancer can ascribe that cancer to exposure. Dr. G.K. also cited peer-reviewed scientific literature questioning the reliability of the program's algorithm. Dr. G.K. noted the difficulty the rarity of radiation exposure poses to scientific studies of its risks but cited studies that noted a particularly strong correlation between radiation exposure and multiple myeloma as compared to other types of cancer. Based on this correlation and on the lack of other risk factors in the Veteran's history, Dr. G.K. concluded that the Veteran's multiple myeloma was at least as likely as not caused by radiation exposure during his military service. On remand, the Director of the Compensation Service ("the Compensation Director") referred the Veteran's case to the Under Secretary for Health. The Compensation Director instructed the Under Secretary to complete a referral to an independent expert only if the Under Secretary's dose estimate differed materially from S.M.'s. The Director of the Post-9/11 Era Environmental Health Program ("the Director"), apparently acting on behalf of the Under Secretary for Health, agreed with S.M.'s objections to the Navy's dose estimate and assigned a dose estimate of 4 rem. The Director offered no rationale for this figure other than that it was "more than 4 times the original radiation dose as reported by the Navy." No other medical rationale was provided for the use of this figure. The Director also noted that the computer program's algorithm fails to take into account three of the factors in 38 C.F.R. § 3.311(e): the limitations in dosimetry devices, pertinent family history, and the extent to which exposure to radiation or other carcinogens outside of service may have contributed to the development of the disease. These omissions are significant, particularly given the importance to the Veteran's claim of his lack of risk factors other than radiation exposure. The Director also included the computer program's results. The program calculated a probability of causation at the 99th percentile of 4.73 percent. Based on this result and on a position statement from the Health Physics Society stating that radiation exposure below 5 rems in a year or 10 rems in a lifetime poses little risk, the Director found that a causal link between the Veteran's radiation exposure and his multiple myeloma was unlikely. The main problem with the Director's opinion is that the data the Director entered into the computer program were flawed. Because the Director stated his agreement with S.M.'s arguments regarding exposure, the Board takes as undisputed S.M.'s assertion that the Veteran was exposed to two different types of radiation. Instead of exposure to two types of radiation on many dates between 1971 and 1979, the Director entered exposure to a single 4 rem dose of a single type of radiation in 1971. The Director also entered a diagnosis date of 2012, six years later than the Veteran's actual diagnosis date of 2006. Furthermore, as stated above, the Director appears to have chosen the 4 rem figure arbitrarily. No matter how reliable the computer program's algorithm might or might not be, the Board cannot find that its results are reliable when the information entered into it is substantially inaccurate. The Board also finds the Director's reliance on medical literature regarding the risks of exposure to less than 5 rems in a year and 10 rems in a lifetime unconvincing, given the lack of any stated basis for the Director's 4 rem figure. The post remand opinions offered put into question the calculations used previously to deny the claim. The new evidence appears highly probative and serves to put the evidence in equipoise. For that reason, with resolution of reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for multiple myeloma, including as a result of exposure to ionizing radiation, are met. ORDER Entitlement to service connection for multiple myeloma, including as a result of exposure to ionizing radiation, is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs