Citation Nr: 0014371 Decision Date: 05/31/00 Archive Date: 06/05/00 DOCKET NO. 94-16 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for rectal cancer due to ionizing radiation. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from February 1944 to May 1946 and from July 1946 to July 1948. This matter came before the Board of Veterans' Appeals (Board) on appeal from July 1992 and September 1993 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, denying the veteran entitlement to service connection for cancer involving the colon or rectum with metastases to the lung. In November 1996, the Board denied the veteran's claim for entitlement to service connection for rectal cancer due to exposure to ionizing radiation. The veteran appealed. In August 1998, the United States Court of Veterans Appeals, now the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand pursuant to its decision in Hilkert v. West, 11 Vet. App. 284 (1998). The Court found in that decision that 38 C.F.R. § 3.311 requires the Undersecretary for Benefits and, in effect, because medical expertise is required, the Undersecretary for Health to specifically articulate his or her consideration of each of the factors listed at § 3.311(e). To comply with Hilkert and pursuant to the joint remand, the Board, in December 1998 remanded this case to the RO for resubmission to the Undersecretary for Benefits for further analysis under § 3.311(e). While in remand status, the Court granted the Secretary's motion for en banc review of its decision in Hilkert and in Hilkert v. West, 12 Vet. App. 145 (1999) (en banc) withdrew its earlier opinion. In so doing, the Court held, contrary to its earlier opinion, that a decision by the Undersecretary for Benefits of all factors under 38 C.F.R. § 3.311(e) is not required if the Undersecretary for Benefits recommends that there is "no reasonable possibility that the veteran's disease resulted from radiation exposure in service" as authorized under 38 C.F.R. § 3.311(c)(1)(ii). In light of that decision, the claims folder was returned to the Board in March 1999 without action by the RO. In April 1999 the Board issued a new decision denying service connection for rectal cancer. The veteran appealed again to the Court, which in November 1999 granted the joint motion by the parties to vacate and remand the April 1999 Board decision because the veteran had not had a 60-day opportunity to respond to a March 1999 supplemental statement of the case. In December 1999 the veteran submitted a new medical opinion, described below, waived RO consideration in processing of this evidence as provided in 38 C.F.R. § 20.1304(c) (1999), and moved that the case be advanced on the Board's docket due to the advanced state of his cancer. This motion was granted. In January 2000, the Board issued a further decision denying service connection for rectal cancer. This decision was appealed to the Court, which in April 2000 granted the joint motion by the parties to vacate and remand the January 2000 decision in order for the Board to fully articulate reasons and bases for its findings of fact and conclusions of law and furthermore to consider the application of the benefit of the doubt doctrine. In April 2000, the veteran, through his attorney, submitted further private medical opinion described below, waived RO consideration in processing of this evidence as provided in 38 C.F.R. § 20.1304(c), and moved that the case be again advanced on the Board's docket. This motion was granted. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet. App. 119 (1993), informed the appellant's representative in a May 2000 letter of the additional evidence developed and provided an opportunity to respond. The representative subsequently submitted further argument and that has been included in the claims file for review. FINDINGS OF FACT 1. In November 1945, the veteran was present at Nagasaki, Japan, and was exposed to a maximum possible dose of ionizing radiation equal to less than 1 rem. 2. Rectal cancer was not manifested in service or within the first post service year, and there is no evidence that it is attributable to disease or injury during service, other than exposure therein to ionizing radiation. 3. There is no reasonable possibility that the veteran's rectal cancer resulted from radiation exposure in service. CONCLUSION OF LAW Rectal cancer was not incurred in or aggravated by service, may not be presumed to have been incurred therein, and is not due to exposure to ionizing radiation in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Initially, we note that we have found that the veteran's claim for entitlement to service connection for rectal cancer is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is not inherently implausible. We are also satisfied with regard to this claim that all relevant facts have been properly developed and that the clinical data on file are sufficient for us to render a fair and equitable determination of the matter at hand. In order for service connection to be granted, it must be shown that there is a disability present, which is the result of disease or injury which was incurred or aggravated in service or in the case of certain diseases, to include cancer, manifested to a compensable degree within 1 year from service separation. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A showing of incurrence may be established by affirmatively showing inception in service, and each disability must be considered on the basis of the places, types and circumstances of service as shown by service records and other evidence. Service connection may be established for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303. The veteran contends that he was exposed to ionizing radiation while on board the U.S.S. Sperry, which was in Nagasaki, during the American occupation of Japan. He argues that he now has rectal cancer as a result of his in-service exposure. The veteran's service medical records are negative for any findings indicative of cancer. Post service medical records reveal the veteran was diagnosed with adenocarcinoma of the rectum (also referred to as adenocarcinoma of the colon in March 1990), and with metastatic adenocarcinoma to the right lung in September 1989. He underwent chemo- and X-ray therapy, in addition to various surgical procedures for identification and resection of the lesions. In March 1992, the veteran submitted a claim for service connection for colon and right lung cancer. Several lay statements pertaining to the veteran's presence in Nagasaki and Hiroshima during World War II were received by the RO in March 1993, including statements from Laura M. Kennedy (wife of the executive officer of the Sperry, John E. Kennedy) and Innis O'Rourke, Jr., (a fellow shipmate on the Sperry). Excerpts from the veteran's diary indicating that the ship was in Sasebo and Nagasaki were also received by the RO in March 1993. In April 1993, the Defense Nuclear Agency (DNA) (now the Defense Threat Reduction Agency) confirmed that the veteran was present in Nagasaki, during the American occupation of Japan. A scientific dose reconstruction determined that the maximum possible radiation dose any individual serviceman may have received, from being in Nagasaki, was less than 1 rem. A medical opinion from the Assistant Chief Medical Director for Public Health and Environmental Hazards (ACMD), for the Undersecretary of Health, submitted in February 1996, stated that a statistically significant increased risk for rectal cancer has been found only after extremely high radiation therapy doses and, therefore, it is unlikely that the veteran's adenocarcinoma of the rectum can be attributed to exposure to ionizing radiation in service. A February 1996 letter from the Director of VA's Compensation and Pension Service, for the Undersecretary for Benefits, indicated that the ACMD's opinion, with which the Director agreed, advised that it was unlikely that the adenocarcinoma of the rectum resulted from the veteran's exposure to ionizing radiation in service. As a result, the Director opined that there was no reasonable possibility that the veteran's disability was the result of such exposure. A lay statement from John B. Morland (Captain of the Sperry from April 1945 to August 1946) was received by the RO in February 1996, confirming the Sperry's presence in various Japanese ports, including Nagasaki. A September 1999 letter from Barry L. Singer, M.D., indicates that he reviewed the veteran's service and post service records, including the "appeal statement" that the veteran had minimal radiation exposure. Dr. Singer states: [h]owever, there is no family history of rectal cancer, and it is my opinion that within reasonable medical certainty, the exposure that this patient had to radiation therapy [sic] in 1945 was a contributing factor to the development of his rectal cancer. Dr. Singer discusses the time from exposure to development of the cancer and states: [i]t is my opinion therefore, that the time sequence is appropriate for the development of this rectal adenocarcinoma. It is my opinion that the cancer, with reasonable medical certainty, occurred approximately 40 years or so after his exposure to radiation which would be an appropriate time sequence. In addition, the exposure to radiation in my opinion was the significant contributing factor in the development of this rectal cancer. The Board notes that Dr. Singer is a Diplomate in Internal Medicine, Oncology, and Hematology. Craig N. Bash, M.D., in an April 2000 letter, states that he has reviewed the veteran's claims folder, including service medical records, post service medical records, the letter from Dr. Singer and the "literature review concerning radiation in colon cancer" and concluded that the veteran's colon cancer was likely induced by his exposure to ionizing radiation during his World War II service. Dr. Bash observed that his opinion on this matter was in agreement with the opinion of Dr. Singer. Dr. Bash further noted that the veteran had exposure assuming worse case assumptions of a radiation dosage of less than 1 rem and thus assumed for his report that the radiation dose to the veteran's rectum was .99 rem or .99 c Gray (1 Gray equals 100 rads equals 100 rem). Dr. Bash stated that: ...the .99 rem dose to the rectum is a fairly large dose as the annual cosmic dose to the average American is only .03 to .035 rem/year. (Reference was provided.) Therefore, this patient received a greater than 30 fold increase in dose to his rectum. This dose is increased over 3 times because the patient's dose was local to the rectum and the cosmic dose was to the whole body. Dr. Bash noted that the veteran had a negative family history for colon cancer, that the incidents of any given form of radiation induced cancer does not rise immediately after radiation, but only after a latent period. He also noted that a latent period of between 40 and 44 years for the veteran's cancer was consistent with the cited literature and that he was unable to find any other risk factor of the veteran's colon/rectal carcinoma in the medical record. In summary he stated: [T]his patient with rectal cancer was exposed to ionizing radiation at the age of 18 in the Pacific. He developed his carcinoma approximately 40 years later without a family history or other risk factors. His dose of ionizing radiation was approximately .99 rem, which is sufficient to cause colon cancer...it is therefore my opinion that this patient's colon cancer is likely the result of his exposure to radiation during World War II. The Board notes that Dr. Bash is an Assistant Professor of Radiology and Nuclear Medicine at the Uniformed Services University of Health Sciences, and recently was Deputy Director of Medical Services for a large national veterans' organization. Because of the conflicting opinions which existed with respect to whether the veteran's rectal cancer was attributable to events in service, the Board again referred the case to the ACMD for a review of the opinions proffered by Drs. Singer and Bash and to obtain further opinion as to whether it is at least as likely as not that the veteran's disease resulted from exposure to radiation in service. In response to this request a VA physician, Dr. Neil Otchin, acting for the Chief Public Health and Environmental Hazards Officer, in a memorandum dated in May 2000, observed that the veteran was exposed to a dose of ionizing radiation of less than 1 rem during his military service. He further observed that: It is calculated that exposure to 17.0 rads or less at age 18 provides a 99 percent credibility that there is no reasonable possibility that it is at least as likely as not that colon cancer is related to exposure to ionizing radiation (Committee on Interagency Radiation Research and Policy Coordination (CIRRPC) Science Panel Report Number 6, 1988, page 29). Information in Health Effects of Exposure to Low Levels of Ionizing Radiation (BEIR V), 1990, pages 301 to 303, generally supports this value. Among Japanese A bomb survivors, no excess of colon cancer has been evident at doses below about 100 rads and risks have increased only after intense irradiation. Other studies also suggest that there is a significant risk for colon cancer at doses of about 100 rads but not at low dose levels (Mettler and Upton, Medical Effects of Ionizing Radiation, 2nd Edition, 1995, pages 177- 180). The CIRRPC report does not provide screening doses for rectal cancer. A statistically significant increase for rectal cancer has been found only after extremely high radiation therapy doses (e.g., thousands of rads) (Mettler and Upton, page 181). Rectal cancer has been included with malignancies having a low sensitivity to induction by radiation and which appear excessive only or mainly following relatively high dose exposures (Hendee and Edwards, Health Effects of Exposure to Low-Level Ionizing Radiation, 1996, pages 244 and 258). Addressing the opinions in this matter proffered by Drs. Singer and Bash, the following comments were offered: The veteran has reported to have been exposed to a relatively low dose of ionizing radiation of less than 1 rem in 1945 which is much lower than doses used for radiation therapy. For comparison the current annual occupational limit for radiation exposure mandated by the Nuclear Regulatory Commission is 5 rem per year, total effective dose equivalent (Mettler and Upton, page 12). Only 5 to 20 percent of cases of colorectal cancer are genetic in origin (Holland et al., Cancer Medicine, 4th Edition, 1997, page 2033) so the absence of a positive family history does not provide strong support for the conclusion that radiation caused the veteran's malignancy. While the veteran's age at diagnosis is consistent with a long latency period following radiation exposure, it also is consistent with the fact that individuals in the U. S. are at highest risk for colorectal cancer when over age 60 (Holland et al, page 2031). The risk rates by Hall cited for thyroid cancer, colon cancer and leukemia appear to be absolute not relative risk. The excess relative risk for colon cancer for an exposure of 1 rem appears to be about 1 percent while the excess relative risk for rectal cancer appears to be less than 1 percent (Agency for Toxic Substances and Disease Registry (ATSDR), Toxicological Profile for Ionizing Radiation, 1999, Table 3-9, page 162). The studies by Ron cited were of patients exposed to radiation doses to the colon of 54 to 60 rads which were much higher than the veteran's reported exposure. Assuming a genetic mutation doubling dose of 50 to 250 rem, a radiation dose of 1 rem would be expected to increase the mutations by only about 1 to 2 percent. Whole-body internal exposure of U. S. occupation personnel has been estimated to range from 0.003 rem to 0.068 rem (Institute of Medicine, Adverse Reproductive Outcomes in Families of Atomic Veterans: The Feasibility of Epidemiologic Studies, 1995, page 71). Studies of nuclear workers who potentially were exposed to internalized radiation generally have not found statistically significant increases in colon or rectal cancer (Mettler and Upton, pages 178-181). The average U. S. radiation dose is about 0.36 rem per year of which cosmic radiation comprises about 8 percent (ATSDR, pages 9 and 11). In light of the above, it was opined that it is unlikely that the veteran's cancer of the large intestine whether colon or rectal in origin can be attributed to exposure to ionizing radiation in service. II. Analysis The veteran's service medical records are negative for rectal cancer or, for that matter, cancer of any sort. Therefore, and because the veteran is shown not to have been diagnosed with cancer, adenocarcinoma of the rectum with metastatic adenocarcinoma to the lung, until the 1980's, approximately 4 decades after service, the veteran's cancer was first manifested too remote in time from service to support a claim that it is related thereto on a direct or presumptive basis under the provisions of 38 C.F.R. § 3.303 and/or 38 C.F.R. § 3.307. The Board further observes that there is nothing in the veteran's post service treatment records to suggest that the veteran's cancer is in any way related to his period of active service. Because the veteran is claiming his cancer to have been caused by in-service exposure to radiation, his appeal must also be adjudicated with consideration of the provisions of 38 C.F.R. §§ 3.309 and 3.311. This process is described in Hardin v. West, 11 Vet. App. 74, 77 (1998): Service connection for a condition which is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). First, there are 15 types of cancer which are presumably service connected. 38 U.S.C.A. § 1112(c). Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Qualifications under the presumptive provisions of 38 U.S.C.A. § 1112(c) occurs when a veteran suffers from one of the 15 listed conditions, and establish participation in a "radiation risk activity" defined as: (i) on site participation in a test involving the atmospheric detonation of a nuclear device. (ii) the occupation of Hiroshima or Nagasaki, Japan, by the United States Forces during the period beginning on August 6, 1945, and ending on July 6, 1946. (iii) internment as prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which (was determined by the Secretary) resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans described in clause (ii) of this subparagraph. In this regard, the Board notes that while the veteran's cancer was variously diagnosed at one point as rectal versus colon cancer, with metastases to the right lung, these types of cancer are not currently to be found on the list of "diseases specific to radiation-exposed veterans." 38 C.F.R. § 3.309(d)(2). Rectal, colon and lung cancer, however, are considered to be potentially radiogenic diseases under 38 C.F.R. § 3.311. The DNA confirmed the veteran's presence in Nagasaki and his exposure to less than 1 rem of ionizing radiation. Based on the ACMD's opinion that it was unlikely that the veteran's adenocarcinoma of the rectum could be attributed to this exposure to ionizing radiation in service, the Director of the Compensation and Pension Service has concluded that there is no reasonable possibility that the veteran's cancer was the result of his exposure to ionizing radiation. Additional opinion obtained from the ACMD following a review of the opinions obtained from Drs. Singer and Bash and review of relevant medical treatises and studies resulted in a further conclusion by the ACMD that it is unlikely that the veteran's cancer could be attributable to exposure to ionizing radiation in service. Resolution of the case rests on weighing the opposing opinions. The veteran's representative argues that the opinions of Drs. Singer and Bash are more persuasive in this matter as they are based on a review of the veteran's claims folder, unequivocal, and are supported by medical literature as well as their considerable expertise. The Board, however, notes that the opinions proffered by the office of the ACMD are equally unequivocal and founded on a complete review of the evidentiary record, the medical literature and professional expertise. Dr. Singer and Dr. Bash both point out that there is no family history of rectal cancer and that the development of the cancer was at an appropriate time after exposure. Dr. Bash further observes that the veteran's history is negative for other risk factors. This reasoning, particularly Dr. Bash's, appears to primarily be a process of eliminating all other factors that might have contributed to the development of cancer and deducing that the etiology of the veteran's cancer, ergo, must be his exposure to ionizing radiation in service. This apparent speculation is furthermore based on an assumption that the veteran's colon/rectum was "preferentially radiated from ingested material" resulting in a dose significantly larger than the annual cosmic dose to the average American. In fact, while DNA has estimated that the veteran was exposed to a dose of ionizing radiation during service of less than 1 rem, this was both a worse case assumption and a cumulative dosage consisting of radiation received, externally and through inhalation, as well as through ingestion. Even conceding for argument's sake that the veteran had a total .99 rem dose to the rectum, Dr. Otchin has noted that this is a relatively low dose, much lower than doses used for radiation therapy and much lower than the doses in the studies cited by Dr. Bash. Dr. Singer refers to the veteran's history of "radiation therapy in 1945" which is not the case Equally significant, in view of the importance both Dr. Singer and Dr. Bash have attached to the latency period between exposure to ionizing radiation and the development of the veteran's cancer in formulating their opinions, is the additional observation by Dr. Otchin that the onset of the veteran's cancer is also consistent with the fact that persons over the age of 60 are at highest risk for colorectal cancer. The Board is persuaded that the latency period between assumed exposure and diagnosis does not rule out a causal connection, and does not make such a connection more likely. Dr. Bash, furthermore, in formulating his opinion, has relied on studies involving radiation doses many times higher than in the veteran's case; thus the opinion is essentially theoretical in nature. The opinions obtained by VA, on the other hand, are based on studies of the populations actually exposed to the radiation of the atomic explosions in Japan. The opinions of Dr. Singer and Dr. Bash are, in fact, contradicted by experience with these populations. The opinions by the office of the ACMD are based on the premise that a statistically significant increase in the risk of rectal cancer occurs only after extremely high radiation doses, and provide a basis in the literature for that premise. Given that a dose of less than 1 rem is shown by the evidence of record and uncontroverted by a higher dose estimate from a credible source, see 38 C.F.R. § 3.311(a)(3) (1999), the Board finds that these opinions are more persuasive. The benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b) is not for application in this case as the evidence as discussed above for and against the claim is not in relative equipoise but instead preponderates against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990), Williams (Willie) v. Brown, 4 Vet. App. 270, 273-74 (1993), and Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In so deciding the Board observes that in determining whether evidence is equally balanced such as to entitle a veteran to the benefit of the doubt, equal weight is not accorded to each piece of material contained in the record; every item does not have the same probative value. The Board's determination of what weight to attach to the evidentiary record is more qualitative than quantitative. Here the Board finds that the opinions against the veteran's claim proffered by the ACMD are significantly more persuasive for the reasons indicated above. Accordingly, the benefit appealed for must be denied. ORDER Service connection for rectal cancer is denied. J. E. Day Member, Board of Veterans' Appeals