Citation Nr: 0809843 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-38 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for prostate cancer due to ionizing radiation exposure at Hiroshima in 1945, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and MC ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from June 1944 to May 1946. He was born in January 1926. This appeal to the Board of Veterans Appeals (Board) is from action taken by the above Department of Veterans Affairs (VA) Regional Office (RO) in July 2005. Service connection is now in effect for post-traumatic stress disorder (PTSD), rated as 30 percent disabling; degenerative disc disease (DDD) of the lumbar spine, residuals of shell fragment wounds, rated as 20 percent disabling; sciatic neuropathy and decreased muscle strength, left lower extremity, associated with DDD, lumbar spine, rated as 10 percent disabling; and malaria and sciatic neuropathy, right lower extremity associated with DDD, lumbar spine, each rated as noncompensably disabling. During the course of the current appeal, in August 2005, the veteran withdrew the pending appellate issue of entitlement to service connection for multiple myeloma. The veteran and MC provided testimony before the undersigned Veterans Law Judge at a videoconference hearing in June 2006. A transcript is of record. In July 2007, the undersigned Veterans Law Judge granted the motion to advance the case on the docket pursuant to 38 C.F.R. § 20.900(c). Since then, the case has been sent to an independent medical expert for a written opinion. That opinion is now in the file, and the veteran and his representative have been provided with a copy thereof, and the opportunity to respond. FINDINGS OF FACT 1. The additional evidence submitted since the Board's October 2002 decision relates to an unestablished fact which, when considered with earlier evidence of record, provides information necessary to substantiate the appellant's claim for service connection for prostate cancer and creates a reasonable possibility of substantiating the claim. 2. The veteran is shown to have been exposed to ionizing radiation during the bombing of Hiroshima in 1945 while on active military duty. 3. The veteran is not shown to have manifested complaints or findings of prostate cancer in service or for many years thereafter. 4. The competent medical evidence shows that there is no reasonable possibility that exposure to radiation during World War II caused the veteran's prostate cancer. 5. The veteran's prostate cancer is not otherwise shown to be due to radiation exposure or other event or incident of his period of active service. CONCLUSIONS OF LAW 1. Evidence submitted since the October 2002 Board determination denying service connection for prostate cancer is new and material, and the appellant's claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.104, 3.156(c), 20.1101 (2007). 2. Prostate cancer was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service due to ionizing radiation exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007). The veteran's initial claim for service connection for prostate cancer was denied by the Board in October 2002. He thereafter filed to reopen, and included numerous earlier, and more current medical records. VCAA notification letters were sent to him in December 2003 and March 2005. Extensive additional records were received including from official service sources, and in July 2005, the VARO denied the claim. He filed his NOD in August 2005. An SOC was issued in October 2005. He later provided testimony and development was again undertaken with the evidence, throughout which time the requirements to support his claim were discussed at length in writing and orally. In the aggregate, the Board finds that the RO has satisfied the duty to notify and assist under the VCAA. The Board finds that the content of letters and other communications complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Any other defect with respect to timing was harmless error. See Mayfield, supra. He was advised of his opportunities to submit additional evidence after which additional data was obtained and entered into the record. The Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He has submitted additional data, and has indicated that he has no other information or evidence to substantiate the claim. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of the current appeal. Neither the veteran nor his representative has suggested in any way that there is any prejudice due to a lack of proper VA notice or assistance. The veteran and his representative herein have demonstrated actual knowledge of, and have acted on, the information and evidence necessary to substantiate the pending claim. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim) and actual knowledge as addressed in related notification requirements have been fulfilled as contemplated in Vasques-Flores v. Peake, No. 05- 0355 (U.S. Vet. App. Jan. 30, 2008). Thus, any absence of information was harmless error and, to whatever extent the decision of the Court in Dingess, supra, requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board notes that such information was provided to the veteran, and, given the nature of the conclusion herein, any presumption of error as to VCAA notice has been rebutted in this case. See Sanders, supra. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development on this issue. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Reopening of Claim New and material evidence means evidence not previously submitted to agency decision makers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). See Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). Evidence which is solely cumulative or repetitious in character will not serve as a basis for reconsideration of a previous decision. Moreover, Hodge stressed that under the regulation new evidence could be material if that evidence provided "a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge, supra, at 1363. The Board notes that, effective August 29, 2001, changes were made to 38 C.F.R. § 3.156(a), which defines new and material evidence. Since the appellant's request to reopen his claim was initially filed thereafter, the new language of 38 C.F.R. § 3.156(a) will be applied. To whatever extent the new regulation has changed the approach to developing evidence in claims, it has not modified the longstanding requirement that a previously denied claim may not be reopened and readjudicated unless, and until, there has been a finding that new and material evidence has been submitted. Before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision: "[T]he Board does not have jurisdiction to consider a claim which [has been] previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). The claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. §§ 5103A(f), 5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the claim was finally disallowed on any basis, not only since the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). In summary, at the time of the VARO's most recent decision, of record was a denial in October 2002 by the Board of the veteran's claim in that regard. Thus, technically, the current claim ordinarily would be one of reopening with new and material evidence, and the Board would be obliged to address and find, independently of the decision by the VARO, whether evidence was new and material to reopen the claim. See, e.g., Barnett; Butler, supra. However, since one factor precipitating the reopening of the claim related to a revised estimate as to the veteran's exposure to ionizing radiation by the Defense Threat Reduction Agency (DTRA), and other official records and assessments, there is no need to further delve into the particulars of the reopening. It can be more appropriately stipulated that the Board concurs with the RO that this is both new and material evidence, and presumes the reopening of the claim. Since the 2002 Board decision, considerable additional evidence has been introduced into the file, including expert opinions. This only supports the conclusion that new and material evidence has been submitted and the claim is reopened. The case will thus be addressed by the Board on a de novo basis as it was by the VARO. This is to the veteran's decided benefit and serves as no prejudice to him whatsoever. And, since the evidence is new and material, further adjudication of the claim on the merits is warranted. 38 U.S.C.A. § 5108; Kehoskie v. Derwinski, 2 Vet. App. 31 (1991). III. Applicable Legal Criteria and Factual Background Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for cancer may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1101, 1110, 1112, 1113; 38 C.F.R. § 3.307, 3.309. 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. The definition of "radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d) (2007). Diseases specific to radiation-exposed veterans are the following: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myeloma; (x) lymphomas (except Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary gland; and (xv) cancer of the urinary tract. 38 C.F.R. § 3.309(d)(2). 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: thyroid cancer, breast cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non- malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv). Service connection may also be established for disease initially diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected when specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge was otherwise incurred during active service, including as a result of exposure to radiation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted above, for radiation presumptive service connection purposes pursuant to 38 U.S.C.A. § 1112 and 38 C.F.R. § 3.309(d), 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". The term radiation-risk activity means the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946. The term "occupation of Hiroshima and Nagasaki, Japan, by United States forces" means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure, or deactivation and conversion of war plants or materials. 38 C.F.R. § 3.309(d)(3)(vi). Under the special development procedures in section 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). 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, his service medical records (SMRs), 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). These procedures have been fulfilled in this case. The basic facts in this case are not in dispute. The veteran served on active duty in World War II. He does not claim treatment for prostate cancer in service, and his SMRs are negative for treatment or diagnosis of such cancer. To sum up the pertinent evidence of record, the veteran served with "D" Company, 186th Infantry Regiment, within the defined Hiroshima area from October 7 to December 24, 1945. He was 19 years of age. His unit headquarters was five miles from ground zero and his duties included security, motor pool operations, and destruction of Japanese military equipment. Taking judicial notice of a fact not subject to reasonable dispute, see McCreary v. Nicholson, 19 Vet. App. 324, 327 (2005) (providing for judicial notice), the United States dropped an atomic bomb on Hiroshima on August 6, 1945, and another on Nagasaki on August 9, 1945. Kenneth E. Hunter, The War Against Japan (2nd ed., Center of Military History, United States Army, Washington, DC 2006. A Radiation Dose Reconstruction (RDR), combining the veteran's external and internal dose to the prostate resulting from inhalation and ingestion of contaminants, has been estimated as follows: external dose 0.03 rem; upper bound external dose, <1 rem. The estimate considered that (a) he was present in Hiroshima for the entire period his unit was therein present; (b) he was assigned daily duties throughout; (c) for each of those days of highest exposure, when he was within the designated area identified above, he worked 8 hours a day at the hypocenter, or 4 hours a day in the downwind rainout areas; and (d) for the inhalation dose, the intake of contaminants were characterized by parameters (resuspension, breathing rate, and particle size) with values chosen to maximize the internal dose. The RDR assessment estimated internal committed dose to the prostate at 0.0001 rem; and the upper bound committed dose to the prostate as 0.001 rem. At about age 45, the veteran was found to have developed prostate cancer. The nature of his subsequent treatments are documented in the file. He reports no known exposure to carcinogens or radiation since service. An opinion is of record from VA Chief Public Health and Environmental Hazards Officer, dated in August 2004, to the effect that it is unlikely that the veteran's prostate cancer could be attributed to his exposure to ionizing radiation in service. The veteran and his representative have indicated that one of his private physicians had privately opined that his cancer is due to the Hiroshima radiation. Scientific treatise materials have been submitted in support of that assertion. A statement is further of record from J.G.S., Jr., M.D., dated in January 2005, to the effect that, based upon a recent article in a veterans service organization magazine (a copy of which he attached), he was reporting, as the veteran's physician, that the veteran was being treated for a specific cancer thought to be due to the World War II radiation exposure. The case was sent by the Board for an independent medical expert opinion by a radiological oncologist. The request for the opinion stated, in pertinent part: "Because of the complexity of the issue, and the apparent difference in scientific opinions, you are asked to review the claims file and all pertinent documentation, and render an opinion as to whether it at least as likely as not that the veteran's prostate cancer is due to his in-service exposure to ionizing radiation while in Hiroshima in 1945." The November 2007 opinion is now of record, and a copy has been sent to the veteran and his representative with a reasonable opportunity to respond. The opinion is quite long and includes reference to clinical treatises and other works, along with extensive footnoting. The thrust of the opinion is that [A]fter applying currently available methodology to calculate causation probability and reviewed the current literature regarding the relationship of prostate cancer and prior radiation exposure, I find no basis to support the claims that it is more likely than not that the veteran's prostate cancer was caused by his exposure while stationed near the Hiroshima blast site. The radiation oncologist further noted all of the pertinent facts of record in considerable detail and concluded that: My review of the available information in the appellant's appeal leads me to the conclusion that there is a very low probability that his exposure to possible radiation residuals while stationed in Hiroshima in 1945 had a causative effect in the subsequent development of prostate cancer 46 years later. He likely had as much or more exposure to radiation over the those 46 years from various sources of background radiation and diagnostic imaging as from his exposure in Hiroshima. He was diagnosed with prostate cancer at an age that falls within the peak age range for the general population and prostate cancer is one of the solid tumors not yet associated with prior radiation exposure. Therefore, his risk of getting prostate cancer was nearly indistinguishable from that of the general male population. In my opinion the appeal is not supportable. In a subsequent addendum in December 2007, the medical expert noted that in estimating the background radiation and exposure from diagnostic imaging as discussed in the earlier opinion, he had in fact underestimated those, which he said did not detract from or alter, but in fact actually strengthened his conclusions, e.g., that it illustrated that the "veteran's prostate (radiation) dose from Hiroshima was 1000-fold smaller than his prostate dose from 1945 to present from non-Hiroshima sources." IV. Analysis The Board has reviewed the probative evidence of record, including the veteran's testimony and written statements on appeal. In this case, it is established that the veteran was in the vicinity of Hiroshima and was exposed to ionizing radiation as result. In addition, he has been diagnosed with and treated for prostate cancer, albeit many years later. Prostate cancer is not among those forms of cancer which may be presumptively service-connected under the provisions of 38 C.F.R. § 3.309. However, it is a radiogenic disease under the provisions of 38 C.F.R. § 3.311 which, in essence, concedes the possibility that exposure to ionizing radiation may be an etiological factor for the development of specified diseases. The degree to which radiation exposure is a factor to the development of a malignancy varies depending on the type of malignancy, the amount, rate, and type of radiation exposure, and other relevant risk factors such as age at time of exposure. Therefore, the question presented in this case is whether the veteran's presumed level of radiation exposure was sufficient to induce his prostate cancer. The Board finds that the preponderance of the medical evidence is against a finding that the veteran's prostate cancer is causally related to his in-service exposure to radiation. The DTRA determined that the veteran participated in the occupation of Hiroshima, where he was exposed to ionizing radiation, and has provided reconstructed dose estimates, which have not been disputed. The VA Chief of Public Health and Environmental Hazards Officer has provided an opinion that it is unlikely that the veteran's particular level of ionizing radiation exposure was sufficient to cause his prostate cancer. And finally, a medical expert in oncological radiation has provided a recent opinion which reached the same conclusion. Those opinions were based upon review of the particular facts of this case, to include the amount of the veteran's radiation exposure, his duration of exposure, and the elapsed time between his exposure and onset of his cancer. Moreover, these opinions were provided by a public health official specifically tasked and specialized in evaluating environmental hazard risks, to include radiation exposure, and another oncological radiation expert in the field. And, while various magazine articles and other hypotheses have been presented, the evidentiary record contains no competent medical opinion to the contrary. We recognize that lay statements may be competent to support a claim as to lay-observable events or lay-observable disability or symptoms, see, e.g., Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the determination as to causation and nexus in this case requires professional opinion evidence, as discussed above. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); 38 C.F.R. §3.159(a) (2007). The veteran's personal belief that his prostate cancer is due to his in service radiation exposure, while well-intentioned, holds minimal probative value in this case, as he is not shown to possess the requisite medical training and expertise to speak to issues of medical causation. Accordingly, the claim under 38 C.F.R. § 3.311 must be denied. The Board further finds that the preponderance of the evidence demonstrates that the veteran's cancer, which was first shown medically many years after his period of active service, is not otherwise related to events during active service. There is no reasonable doubt of material fact to be resolved in his favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. The Board appreciates the veteran's forthright testimony at his videoconference hearing, and views with admiration the veteran's honorable service to the Nation during World War II. We also recognize his sincere belief in the merit of his claim. However, we must decide cases such as this in light of sound scientific data, and, based upon the record before the Board, the claim for service connection for prostate cancer must be denied. ORDER The reopened claim seeking service connection for prostate cancer due to ionizing radiation exposure at Hiroshima in 1945 is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs