Citation Nr: 0518711 Decision Date: 07/11/05 Archive Date: 07/20/05 DOCKET NO. 04-12 133A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for lymphocytic lymphoma, to include as due to non-ionizing radiation exposure. 2. Entitlement to service connection for lymphocytic leukemia, to include as due to non-ionizing radiation exposure. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD F. Hoffman, Associate Counsel INTRODUCTION The veteran served on active duty from October 1952 to October 1956, with more than four months of other service. This case comes properly before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). FINDINGS OF FACT 1. There is no objective evidence that the veteran was exposed to ionizing radiation during service. 2. The objective evidence indicates that the veteran was exposed to nonionizing radiation during service. 3. The medical evidence of record reveals that the veteran was diagnosed with lymphocytic lymphoma in May 1998. 4. Lymphocytic lymphoma was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. 5. There is no competent medical evidence linking the veteran's current lymphocytic lymphoma to his military service. 6. The medical evidence of record reveals that the veteran was diagnosed with lymphocytic leukemia in October 1998. 7. Lymphocytic leukemia was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. 8. There is no competent medical evidence linking the veteran's current lymphocytic leukemia to his military service. CONCLUSIONS OF LAW 1. Lymphocytic lymphoma, was not incurred in service, aggravated by service, or manifested to a degree of 10 percent within one year from service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2004). 2. Lymphocytic leukemia, was not incurred in service, aggravated by service, or manifested to a degree of 10 percent within one year from service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). VA has issued regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Second, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, VA notified the veteran by a letter dated in December 2002 that VA would obtain all service personnel and service medical records, VA medical records, and any other employment or medical records about which the veteran notified them. The veteran was also notified in a May 2004 letter what further medical evidence was needed in order to substantiate his claims. The veteran was advised that it was his responsibility to either send employment and medical treatment records from his employer and private physician regarding treatment for his claimed disabilities, or to provide a properly executed release so that VA could request the records on his behalf. The duty to notify the veteran of necessary evidence and of responsibility for obtaining or presenting that evidence has been fulfilled. Id. Third, VA has a duty, in order to assist claimants, to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the veteran's service department medical records were requested March 1967, with a subsequent response in March 1967 indicating that no records were found. They were again requested in September 2002, with a subsequent response in November 2002 that the records could not be identified based on the furnished information. In February 2003, the records were again requested, this time to include "sick/ morning" reports. A March 2003 response indicated that no service medical records were found, but also included two morning reports dated December 13, 1954, and December 15, 1954. The veteran has had no treatment at a VA medical facility about which he has informed the RO. However, his private treatment records have been associated with the claims file. The veteran was asked to advise VA if there was any other information or evidence he considered relevant to his claim so that VA could help him by getting that evidence. He was also advised what evidence VA had requested, and notified in a statement of the case and a supplemental statement of the case what evidence had been received. There is no indication that any pertinent evidence was not received. Thus, VA's duty to assist has been fulfilled. Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See also Mayfield v. Nicholson, No. 02-1077 (U.S. Vet.App. April 14, 2005). In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. In addition, certain chronic diseases, including leukemia, prostate cancer, diabetes mellitus, lymphoma, hypertension and diseases of the nervous system such as peripheral neuropathy, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The veteran contends that his lymphocytic lymphoma and lymphocytic leukemia stem from his exposure to non-ionizing radiation in service. He claims that he was exposed to non- ionizing radiation from radio frequency emissions during service. In written statements dated in January 2002, April 2002, January 2003, and January 2005, the veteran claimed that he was stationed at Eilson Air Force Base in Alaska for 25 months, and that he was exposed to radiation, which caused his lymphocytic lymphoma and lymphocytic leukemia. The veteran stated that he was responsible for repair and maintenance of heavy transmitters and that these transmitters were always on-line, except for when they were being repaired. The veteran stated that all of the feed lines to the antennae field were exposed in the building, and that he was not provided with protective clothing or any other safety equipment. The veteran also stated that the fluorescent lights in the building would not turn off due to the level of radiation, nor were the heaters in the building ever turned on, due to the radiation heat emitting from the transmitters. The veteran's DD 214 confirms that the veteran served as a communications equipment repairman, with more than two years of foreign and/or sea service. The Court of Appeals for Veteran's Claims has taken judicial notice that radio equipment emits microwave-type non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67, 69, 71-2 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984). As discussed above, the veteran's complete service medical records are not available. However, the veteran's service separation examination report, dated in September 1956, is associated with the claims file. This examination report indicates no complaints of, or treatment for, lymphocytic lymphoma and lymphocytic leukemia. Further, a clinical evaluation of the veteran's health was evaluated as "normal," to include the head, face, neck and scalp, the sinuses, the mouth and throat, the endocrine system, and the skin and lymphatics, by the examining physician. It was also noted that the veteran reported usual childhood illness and a removal of a cyst from his nose in 1951, all with no complications and no residuals. The veteran denied all other medical history. The medical evidence of record indicates that the veteran was diagnosed with non-Hodgkin's lymphoma, consistent with small lymphocytic lymphoma in May 1998. According to a January 2003 letter from the veteran's private physician, the veteran was diagnosed with chronic lymphocytic leukemia in October 1998. A February 2002 letter from the veteran's private physician stated, "At best, the link [or cause] could be explored between his potential occupational exposure to irradiation and his current neoplasm." Further, the January 2003 letter reveals a treatment summary for the veteran. The letter also indicates, "There is growing evidence that has clearly linked lymphoma/leukemia, such as [the veteran's] with exposure to radiation. Per [the veteran's] account of his military history, he was exposed to radiation while stationed in Alaska during his service in the Air Force." Additionally, the private physician submitted another letter in April 2004, drawing attention to his previous letters and indicating that the veteran would be submitting research citations to the RO. The physician stated, "I would appreciate if this information could be reviewed in relationship between exposure to nonionizing radiation and the development of leukemia/lymphoma." In April 2004, the veteran submitted three articles. The veteran asserted that these articles establish a link from his current diagnoses to his active service. The Board disagrees, as these articles appear to be of a general nature, and, therefore, completely unrelated to the facts of the case at hand. Additionally, the articles specifically state, "Currently there is no known link between exposure to RF [radio frequency] radiation and an increased risk of cancer." As such, the articles do not provide any link between the veteran's current lymphoma and leukemia and his active service. Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (medical treatise submitted by an appellant that only raises the possibility that there may be some relationship between one disorder and another does not show a direct causal relationship between the two disorders). The veteran's private physician submitted a letter in June 2004, again indicating the veteran's current diagnoses, and which stated: The linkage between lymphoplasmatic malignancies and exposure to non-ionizing radiation is a known, established medical entity. In addition to extensive medical literature worldwide on this particular matter, I believe that the previous and recent scientific investigations, some of which have been sponsored and granted by the Department of Defense, have clearly demonstrated the presence of an etiologic connection between these two entities. Commonly-used medical textbooks generally, and oncologic textbooks specifically, have cited those literature. The most recent issue of "Cancer Medicine" by James F. Holland would be an example. I trust that these lines of information are of assistance to you. An informal hearing report from April 2004 shows that the Decision Review Officer indicated he "would concede exposure to radio frequency radiation in service." At this informal hearing, the veteran requested a VA examination. Due to the veteran's medical treatment schedule, it was decided that an examination would be scheduled around his treatment, if possible, but that if it were not possible, then the claims file would be forwarded for a nexus opinion without a physical examination. A report of contact from June 21, 2004 states, "I spoke with the veteran. He will report for VA examination at St. Louis VAMC." The veteran was scheduled to report for a VA examination at that facility in July 2004, but failed to report for the examination. Although the veteran contends that he was not notified of this examination, the notice of the examination was sent to the veteran's correct address and the telephone number of the veteran provided to the VAMC was correct. See Baldwin v. West, 13 Vet. App. 1 (1999); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (the presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties). Consequently, an "opinion only" request was made of the St. Louis VAMC in August 2004. A September 2004 VA opinion states, "The veteran's [claims file] was completely and thoroughly reviewed. Additional reference literatures were consulted." The physician went on to say, "It is my medical opinion that the veteran's lymphocytic lymphoma and lymphocytic leukemia are not likely related to a non-ionizing radiation that the veteran was exposed to while in service in Alaska." The physician indicated that the opinion was based on the fact there is no clear documentation as to the exact exposure levels, and on the inconclusive literature regarding a possible relationship between the veteran's types of cancers and non-ionizing radiation. The physician then listed the literature he consulted prior to forming the opinion. He concluded with a list of his qualifications as a board certified occupational and environmental physician with a background in the subject, and as having reviewed current relevant literature. Service connection for a disability based upon exposure to 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, the veteran is entitled to service connection if he 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. 38 C.F.R. §§ 3.309(d)(2). The evidence of record reveals that the veteran was diagnosed as having lymphocytic lymphoma and lymphocytic leukemia; however, lymphocytic leukemia is not a cancer that warrants presumptive service connection on the basis of being a disease specific to a radiation-exposed veteran. Id. Moreover, a "radiation- exposed veteran" is defined as a veteran who was involved in a "radiation-risk activity" during military service. Such radiation-risk activities include: participation at atmospheric nuclear tests; being present at Hiroshima or Nagasaki during specific periods of time; and service at specific nuclear weapons production facilities. 38 C.F.R. §§ 3.309(d)(3). In the present case, the evidence of record does not reveal that the veteran meets any of the criteria to be considered a "radiation-exposed veteran" for purposes of service connection for his lymphocytic lymphoma. As such, the preponderance of the evidence is against a grant of service connection for both lymphocytic lymphoma and lymphocytic leukemia on this basis. 38 C.F.R. § 3.309(d). 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. Essentially, any form of cancer is considered a radiogenic disease within the meaning of the applicable regulations. 38 C.F.R. § 3.311(b)(2)(xxiv). Therefore, the veteran's lymphocytic lymphoma and lymphocytic leukemia are radiogenic diseases as contemplated by the regulations. When there is evidence that a veteran suffers from 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). In the present case, the veteran was exposed to radio frequency radiation in active service. However, radio frequency waves are non- ionizing radiation. See Rucker, 10 Vet. App. at 69, 71-2. There is no evidence that the veteran was in any way exposed to ionizing radiation during service or that any such exposure caused his lymphocytic lymphoma and lymphocytic leukemia. Therefore, service connection cannot be granted for either condition based on radiation exposure. 38 C.F.R. § 3.311. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee, 34 F.3d 1039. Again, service connection is established for disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131. Malignant tumors (cancer) may be presumed to have been incurred in service, if the evidence shows that such disease became manifest to a degree of 10 percent or more within one year from separation from active service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307(a), 3.309(a). The disabilities for which the veteran is seeking service connection have been assigned one-year presumptive periods in VA regulations. The evidence of record reveals that the veteran is diagnosed with lymphocytic lymphoma and lymphocytic leukemia. There is no evidence that shows that the veteran was diagnosed with this cancer during service or during the first year after service. The evidence of record reveals that the veteran was diagnosed with lymphocytic lymphoma and lymphocytic leukemia in 1998, which is more than four decades after he separated from service, and well beyond the one-year period during which presumptive service connection would be warranted. 38 C.F.R. § 3.309(a). There is no evidence of record that in any way links the veteran's cancer to his military service or to any incident therein. Although the veteran's private physician offered several letters to indicate that the veteran's current types of cancers could be related to radiation exposure, these opinions only theorized generally about such a possible link. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). Moreover, while the veteran contends that he believes his disorders are related to service, he is not competent to give an opinion requiring medical knowledge as involved in making diagnoses or explaining the etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Under these circumstances, service connection for these disorders is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim for service connection, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for lymphocytic lymphoma, to include as due to non-ionizing radiation exposure, is denied. Service connection for lymphocytic leukemia, to include as due to non-ionizing radiation exposure, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs